This Alien Legacy

The Origins of "Sodomy" Laws in British Colonialism

I. Introduction

Three Trials

In 2008, a case stood unresolved before India's High
Court, calling for reading down Section 377 of the Indian Penal Code. That
provision, almost 150 years old, punishes "carnal intercourse against the order
of nature with any man, woman or animal" with imprisonment up to life.[1]
This law, understood to criminalize consensual homosexual conduct, allows the
state to invade the lives and intimacies of millions of adult Indians.

Five years earlier in the long-running case, India's
Ministry of Home Affairs had submitted an affidavit supporting Section 377. It
said: "The law does not run separately from society. It only reflects the
perception of the society…. When Section 377 was brought under the statute as
an act of criminality, it responded to the values and mores of the time in the
Indian society." The ministry claimed that, by comparison to the United Kingdom
and the United States of America, "Objectively speaking, there is no such
tolerance to [the] practice of homosexuality/lesbianism in the Indian society."[2]

This was sheer amnesia. Section 377, at its origin, did not
respond to Indian society or its "values or mores" at all. British colonial
governors imposed it on India undemocratically. It reflected only "the British
Judeo-Christian values of the time," as the petitioners in the case told the
court in reply.[3]
Indeed, on August 16, 2008-the sixty-first anniversary of India's freedom-the
law's opponents marched in Mumbai and demanded the UK government "apologise for
the immense suffering that has resulted from their imposition of Section 377.
And we call on the Indian government to abandon this abhorrent alien legacy …
that should have left our shores when the British did."[4]
They chose the day because while "India had got its independence from the
British on this date in 1947, queer Indians were still bound by a British Raj
law."[5]

In a second case in the same month, in Malaysia, a court
arraigned Anwar Ibrahim, former deputy prime minister and now a leader of the
opposition. He stood charged with sexual relations with a male former aide,
under Section 377 of Malaysia's penal code, which also criminalizes "carnal
intercourse against the order of nature."

It was Anwar's second trial for what the Malaysian press
universally called "sodomy." Like the first charges, nine years earlier, these
showed every sign of a political frame-up. Anwar had been preparing to return
to political life in a parliamentary by-election when the allegations broke. If
Malaysia's government believed, as India's apparently did, that the
colonial-era law mirrored deep social prejudices, then the case was a perfect
tool to discredit him.

Yet according to an opinion poll, two-thirds of Malaysians
thought politics lurked behind the charges, and only one-third believed the
criminal-justice system could handle Anwar's case fairly.[6] Regardless
of how Malaysians felt about homosexual conduct, they did not trust the government
to administer the law. The state's handling of the evidence fed suspicions.
Police had sent the man who filed the complaint to a hospital, for anal
examinations designed to prove the charges: standard procedure in many
countries. Embarrassingly, however, the tests-later leaked on the internet-apparently
found no proof. The government vacillated, too, between charging Anwar with
consensual and non-consensual "sodomy." The uncertainty came easy. The law had
only relatively recently made a distinction between the two-and it still
provided virtually identical punishments, regardless of consent.

A third case came in Uganda, where three members of
an organization defending lesbian, gay, bisexual, and transgender (LGBT)
people's rights faced trial. They had staged a peaceful protest at an AIDS
conference in Kampala, drawing attention to the government's refusal to respond
to the pandemic among the country's lesbian, gay, bisexual, and transgender
(LGBT) communities. Police promptly arrested them and charged them with
criminal trespass.

Seemingly the case had nothing to do with "sodomy" or sex, but
over it hung the shadow of Uganda's law punishing "carnal knowledge against the
order of nature." That law, Section 140 of the criminal code, was also a
British colonial inheritance, though in 1990 legislators had strengthened it,
raising the highest penalty to life imprisonment. The government used the
revised law to harass both individuals and activists who were lesbian or gay,
censoring their speech, threatening them with prison, raiding their homes. Officials
also relied on the law to explain, or excuse, their failure to support HIV/AIDS
prevention efforts among LGBT people-the inaction that sparked the protest.
Four years earlier, the Minister of Information had demanded that both the
United Nations and national AIDS authorities shut out all LGBT people from HIV/AIDS
programs and planning. He cited the law against homosexual conduct. [7]
A spokesman for the Uganda AIDS Commission, the central national clearinghouse
for prevention and treatment, conceded in 2006: "There's no mention of
gays and lesbians in the national strategic framework, because the practice of
homosexuality is illegal."[8]

There was no doubt, then, that the "trespass" charges
against the protesters aimed not just to suppress dissent, but to send a
message that some people-"sodomites," violators of the "carnal knowledge"
law-should not be seen or heard in public at all. President Yoweri Museveni,
who had campaigned against LGBT people's rights for a decade, reinforced that message
at every opportunity. He called homosexuality "a decadent culture … being
passed by Western nations," warning: "It is a danger not only to the
[Christian] believers but to the whole of Africa."[9] He
praised Ugandans for "rejecting" it, and claimed that "having spinsters and
bachelors was quite alien to Ugandan traditions."[10]

The law primed the whole populace to help extirpate the
"danger." For instance, one influential pastor-famous for his campaigns against
condom use-urged that "Homosexuals should absolutely not be included in
Uganda's HIV/AIDS framework. It is a crime, and when you are trying to stamp
out a crime you don't include it in your programmes."[11]The same minister listed Ugandan LGBT rights activists by name on a
website, posting pictures and addresses of the "homosexual promoters"-making
them bullseyes for brute vengeance. The atmosphere crackled with explosive
menace. Hundreds marched in 2007 to threaten punishment for LGBT people,
calling them "criminal" and "against the laws of nature."[12] Yet
government ministers still warned that tougher anti-gay measures were needed. "Satan,"
one said, "is having an upper hand in our country."[13]

Colonial Laws and Contemporary Defenders

More than 80 countries around the world still criminalize
consensual homosexual conduct between adult men, and often between adult women.[14]

These laws invade privacy and create inequality. They
relegate people to inferior status because of how they look or who they love. They
degrade people's dignity by declaring their most intimate feelings "unnatural"
or illegal. They can be used to discredit enemies and destroy careers and
lives. They promote violence and give it impunity. They hand police and others
the power to arrest, blackmail, and abuse. They drive people underground to
live in invisibility and fear.[15]

More than half those countries have these laws because they
once were British colonies.

This report describes the strange afterlife of a colonial
legacy. It will tell how one British law-the version of Section 377 the
colonizers introduced into the Indian Penal Code in 1860-spread across immense
tracts of the British Empire.

Colonial legislators and jurists introduced such laws, with
no debates or "cultural consultations," to support colonial control. They
believed laws could inculcate European morality into resistant masses. They
brought in the legislation, in fact, because they thought "native" cultures did
not punish"perverse" sex enough. The colonized needed compulsory
re-education in sexual mores. Imperial rulers held that, as long as they
sweltered through the promiscuous proximities of settler societies, "native"
viciousness and "white" virtue had to be segregated: the latter praised and
protected, the former policed and kept subjected.

Section 377 was, and is, a model law in more ways than one. It
was a colonial attempt to set standards of behavior, both to reform the
colonized and to protect the colonizers against moral lapses. It was also the
first colonial "sodomy law" integrated into a penal code-and it became a model
anti-sodomy law for countries far beyond India, Malaysia, and Uganda. Its
influence stretched across Asia, the Pacific islands, and Africa, almost
everywhere the British imperial flag flew.

Among these, only New Zealand (in 1986), Australia (state by
state and territory by territory), Hong Kong (in 1990, before the colony was
returned to China), and Fiji (by a 2005 high court decision) have put the
legacy, and the sodomy law, behind them.

Other colonial powers had far less impact in spreading so-called
sodomy laws. France decriminalized consensual homosexual conduct in 1791.[18]
(It did, however, impose sodomy laws on some French colonies as means of social
control, and versions of these survive in countries such as Benin, Cameroon,
and Senegal.) Germany's notorious Paragraph 175 punished homosexual acts
between men from Bismarck's time till after the Nazi period.[19]
German colonies were few, however, and the legal traces of its presence
evanescent.[20]

This report does not pretend to be a comprehensive review of
"sodomy" and European colonial law. It concentrates on the British experience
because of the breadth and endurance of its impact. Nor does this report try to
look at the career of "sodomy" and law in all the British colonies. For
clarity, it focuses on the descendants of India's Section 377. (Britain's
Caribbean possessions received the criminalization of "buggery" in British law,
but by a different process relatively unaffected by the Indian example. They
are not discussed here.[21])

As Britain tottered toward the terminal days
of its imperial power, an official recommendation by a set of legal experts-the
famous Wolfenden Report of 1957-urged that "homosexual behaviour between
consenting adults in private should no longer be a criminal offence." The
report said:

The law's function is to preserve public
order and decency, to protect the citizen from what is offensive or injurious,
and to provide sufficient safeguards against exploitation and corruption of
others ... It is not, in our view, the function of the law to intervene in the
private life of citizens, or to seek to enforce any particular pattern of
behaviour.[22]

England and Wales decriminalized most
consensual homosexual conduct in 1967.[23]That
came too late for most of Britain's colonies, though. When they won
independence in the 1950s and 1960s, they did so with the sodomy laws still in
place.

Few of those independent states have undertaken repeal since
then. This flies in the face of a growing body of international human rights
law and precedents demanding that they do so. They disregard, too, the example
of formerly colonized states like Ecuador, Fiji, and South Africa that have
actually enshrined protections for equality based on sexual orientation in
their constitutions.

Still more striking is how judges, public figures, and
political leaders have, in recent decades, defended those laws as citadels of
nationhood and cultural authenticity. Homosexuality, they now claim, comes from
the colonizing West. They forget the West brought in the first laws enabling
governments to forbid and repress it.

Addressing the sodomy law in 1983, India's Supreme Court
proudly declared that "neither the notions of permissive
society nor the fact that in some countries homosexuality has ceased to be an
offence has influenced our thinking."[24]Courts there have deliberately distanced themselves from conclusions
like those of the Wolfenden report, finding-in the ultimate paradox-that
England now embodies the sexual decadence against which India must be defended.
"Various fundamental differences in both the societies [England and India] must
be realised by all concerned, especially in the area of sexual offences," one
judge held.[25]

Opponents of change have mounted the same argument
elsewhere. While Hong Kong was still a British colony, its authorities fought
Wolfenden-like law reforms.[26]
Commissions deputed to investigate the issue heard opinions such as
"Homosexuality may be very common in Britain, but it is definitely not common
in Hong Kong. Even if it is, it is still wrong to legalize activities that are
in clear breach of our morals."[27]
Only in 1990, after long advocacy by the LGBT community, did the colony
decriminalize consensual homosexual sex.[28]

After fiery debate, Singapore's government refused to rid
itself of its colonial law against homosexual conduct in 2007. The supporters
of this position cited the "communal cohesiveness" that the British statute
supposedly defended.[29]
A petition to the prime minister called the law, forced on the colony decades
before, "a reflection of the sentiments of the majority of society. … Repealing
[it] is a vehicle to force homosexuality on a conservative population that is
not ready for homosexuality."[30]
In November 2001, the then prime minister of neighboring Malaysia, who had
encouraged Anwar Ibrahim's first "sodomy" trial, blamed homosexuality on the
former colonial power: "The British people accept homosexual [government]
ministers," he said. "But if they ever come here bringing their boyfriend
along, we will throw them out. We will not accept them."[31]

Extreme and extraordinary, however, have been the law's
defenses from sub-Saharan Africa. Zimbabwe's Robert Mugabe launched the long
ferocity in the early 1990s, vilifying lesbians and gays as "un-African" and
"worse than dogs and pigs." "We are against this homosexuality and we as
chiefs in Zimbabwe should fight against such Western practices and respect our
culture," he berated crowds.[32]
President Daniel Arap Moi of Kenya blasted homosexuality as "against African
tradition and biblical teachings. We will not shy away from warning Kenyans
against the dangers of the scourge."[33]
In Zambia, a government spokesman proclaimed in 1998 that it was "un-African
and an abomination to society which would cause moral decay"; the vice-president
warned that "if anybody promotes gay rights after this statement the law will
take its course. We need to protect public morality."[34]

Some reasoned voices spoke up. Nelson Mandela, steering a
country proud of its human rights reforms, told a gathering of southern African
leaders that homosexuality was not "un-African," but "just another form of
sexuality that has been suppressed for years … Homosexuality is something we
are living with."[35]
Over the years, though, the desperate defense of Western mores in indigenous
clothing grew more enraged, and influential. Nigeria's President Olusegun
Obasanjo perorated to African Bishops in 2004 that "homosexual practice" was
"clearly un-Biblical, unnatural, and definitely un-African." A Nigerian
columnist echoed him, claiming those who "come in the garb of human rights
advocates" are "rationalizing and glamourising sexual perversion, alias
homosexuality and lesbianism … The urgent task now is to put up the barricades
against this invading army of cultural and moral renegades before they
overwhelm us."[36]

From Singapore to Nigeria, much of this fierce opposition
stemmed from Christian churches-themselves, of course, hardly homegrown in
their origins. Archbishop Peter Akinola, head of the Anglican Church of
Nigeria, has threatened to split his global denomination over some Western
churches' acceptance of lesbians and gays. He acknowledges that the
missionaries who converted much of Africa in colonial days "hardly saw anything
valid in our culture, in our way of life."[37] Yet he also
interprets the most stringent moral anathemas of the missionaries' faith, along
with an imported law against homosexuality, as essential bulwarks of true
African identity.

But the embrace of an alien legal legacy is founded on
falsehood. This report documents how it damages lives and distorts the truth. Sodomy
laws throughout Asia and sub-Saharan Africa have consistently been colonial
impositions. No "native" ever participated in their making. Colonizers saw
indigenous cultures as sexually corrupt. A bent toward homosexuality supposedly
formed part of their corruption. Where precolonial peoples had been
permissive, sodomy laws would cure them-and defend their new, white masters against
moral contagion.

Chapter IIof this report traces the history of
Britain's law on "sodomy," or "buggery," from its medieval origins to the nineteenth-century
attempt to rationalize the chaos of common law. The draft Indian Penal Code,
the first experiment in producing a criminal code anywhere in the Empire, was a
test of how systematizing law would work. Colonial officials codified sodomy
as a criminal offense-and refined its meaning-in the process of writing
comprehensive codes. This began in India, and traveled from Nigeria to the
Pacific in the imperial bureaucrat's baggage.

Chapter IIIshows how the sodomy provisions connected
to other laws and practices that strengthened the colonial state's authority:
laws that marked out whole populations as "criminal," and medical practices
that marked off some bodies as intrinsically, physiologically perverse. Both assumed
that laws should not just punish specific sexual acts, but help control certain
types of dangerous persons.[38]

Chapter IVtraces how courts, under colonialism and
in the newly independent states, interpreted the vague language laid down in
the colonial codes. Three themes emerge.

First, judges tried to bring an ever wider range of
sexual acts within the laws' punitive reach: descending, while doing it,
into almost-comical obsessions with orifice and organ, desire and detail.

Second, the sodomy laws almost universally made no
distinction on the basis of consent, or the age of the partners. The
horror lawmakers and judges felt for homosexual conduct simply obliterated
these issues. The "homosexual" therefore emerged before the law deeply
tarnished by the association with pedophilia and rape-as a sexual monster.

Finally, British provisions on "gross indecency"
gave police opportunities to arrest people on the basis of suspicion or
appearance. And they were an opening for governments looking to
criminalize sex between women as well.

Chapter Vconcludes by looking at the actual effects
of sodomy laws in these countries. They do not aim just at punishing acts. They
post broad moral proclamations that certain kinds of people, singled out by
presumption and prejudice, are less than citizens-or less than human.

Eliminating these laws is a human rights obligation. It
means freeing part of the population from violence and fear. It also means,
though, emancipating post-colonial legal systems themselves from imported,
autocratically imposed, and artificial inequalities.

II. "Sodomy," Colonialism, and Codification

The laws that the Europeans brought dragged a long
prehistory behind them. The first recorded mentions of "sodomy" in English law
date back to two medieval treatises called Fleta and Britton. They
suggest how strictures on sex were connected to Christian Europe's other
consuming anxieties.[39]

Fleta required that "Apostate Christians, sorcerers,
and the like should be drawn and burnt. Those who have connections with Jews
and Jewesses or are guilty of bestiality or sodomy shall be buried alive in the
ground, provided they be taken in the act and convicted by lawful and open
testimony." Britton, meanwhile, ordered a sentence of burning upon"sorcerers,
sorceresses, renegades, sodomists, and heretics publicly convicted."[40]
Both treatises saw "sodomy" as an offense against God. They classed it, though,
with other offenses against ritual and social purity, involving defilement by
Jews or apostates, the racial or religious Other.

The grab-bag of crimes was telling. It matched medieval
law's treatment of "sodomy" elsewhere in Europe. The offense was not limited to
sexual acts between men, but could include almost any sexual act seen as
polluting. In some places it encompassed intercourse with Turks and "Saracens"
as well as Jews. [41]

In part, this traced to an old strain in Christian theology
that held sexual pleasure itself to be contaminating, tolerable only to the
degree that it furthered reproduction (specifically, of Christians). [42]
More cogently, though, it reflected increasing fears in the advancing Middle
Ages about pollution and defilement across social boundaries. The historian
R.I. Moore finds in the eleventh and twelfth centuries the birth of a
"persecuting society" in Europe, targeting various enemies within-Jews, lepers,
heretics, witches, prostitutes, and "sodomites"-who threatened purity and
carried contamination, and had to be cast out and controlled.[43]
Periodic bursts of repression against these and other groups characterized
European law for centuries to follow. "Sodomy" was pollution. Punishing it
marked out racial and religious identity. The urgency British authorities later
showed in transplanting "sodomy" laws into colonial contexts-even before they
were fully codified at home-may reflect the legal category's origins. It was a
way of segregating the Christian, European self from alien entities that
menaced it with infection.

In England, King Henry VIII's break with the Catholic Church
in the sixteenth century led to revising much of the country's common
law-simply because offenses that had formerly been tried in church courts now
had to be heard in secular ones. Many sexual offenses were among them. A 1533
statute, therefore, reiterated the criminalization of "sodomy" as a state
rather than Church concern. Under the name of the "detestable and abominable
Vice of Buggery committed with mankind or beast," it was punished by death.[44]
In one form or another, this law persisted until 1861. The last known execution
for "buggery" in England was in 1836.[45]

The sense of the mysterious, polluting power of "sodomy" or
"buggery" complicated the prosaic legal task of coming up with definitions. Precision
was dangerous because it flirted with contamination. The jurist Edward Coke, in
his seventeenth-century compilation of English law, wrote that "Buggery is a
detestable, and abominable sin, amongst Christians not to be named." He
stressed the foreign derivation of the term-"an Italian word"-as well as the
act itself: "It was complained of in Parliament, that the Lumbards had brought
into the realm the shamefull sin of sodomy, that is not to be named." He
nonetheless named it as acts "committed by carnal knowledge against the
ordinance of the Creator, and order of nature, by mankind with mankind, or with
brute beast, or by womankind with brute beast."[46]
Coke specified that anal sex between two men or a man and a woman, along with
bestiality, were comprised by the term.

Describing "sodomy" precisely was risky, to be avoided. In
an 1842 British court case that involved a man accused of committing "nasty,
wicked, filthy, lewd, beastly, unnatural and sodomitical practices" in the
vicinity of Kensington Gardens, the defense objected that the adjectives gave
no indication of what the crime actually was.[47] The vagueness
became more an issue as, in the nineteenth century, reformers set about
codifying and imposing order on the chaos of British common law and statute
law. The Offences Against the Person Act in 1861 consolidated the
bulk of laws on physical offences and acts of violence into one "modern,"
streamlined statute-still the basis for most British law of physical assault.
It included the offense of (consensual and nonviolent) "buggery," dropping the
death penalty for a prison term of ten years to life.

Less well known is that codifying sexual offenses began far
earlier, in 1825, when the mandate to devise law for the Indian colony was
handed to the politician and historian Thomas Babington Macaulay. Macaulay
chaired the first Law Commission of India and was the main drafter of the
Indian Penal Code-the first comprehensive codified criminal law produced
anywhere in the British Empire.[48]

The colonial environment was the perfect field for
experiments in rationalizing and systematizing law. The colonies were passive
laboratories. A nineteenth-century historian observed that the Indian Penal
Code was a success because there, unlike at home, the British government could
express "a distinct collective will" and could "carry it out without being
hampered by popular discussion."[49]This autocratic imposition of a unified code took advantage of the "absence
of a developed and contentious Indian public opinion around questions of criminal
law," allowing Macaulay a "free field for experimentation."[50]

Fears of moral infection from the "native" environment made
it urgent to insert anti-sodomy provisions in the colonial code. A
sub-tradition of British imperialist writing warned of widespread homosexuality
in the countries Britain colonized. The explorer Richard Burton, for instance,
postulated a "Sotadic Zone" stretching around the planet's midriff from 43
degrees north of the equator to 30 south, in which "the Vice is popular and
endemic …. whilst the races to the North and South of the limits here defined
practice it only sporadically amid the opprobrium of their fellows." [51]

The European codifiers certainly felt the mission of moral
reform-to correct and Christianize "native" custom. Yet there was also the need
to protect the Christians from corruption. Historians have documented how
British officials feared that soldiers and colonial administrators-particularly
those without wives at hand-would turn to sodomy in these decadent, hot surroundings.
Lord Elgin, viceroy of India, warned that British military camps could become
"replicas of Sodom and Gomorrah" as soldiers acquired the "special Oriental
vices."[52]

Macaulay finished a draft Indian Penal Code in 1837, though
Indian resistance and English hesitation meant that an approved version did not
come into force until 1860. Introducing the text in an 1837 speech, he
discussed the clauses in detail-except when, reaching his version of the
anti-sodomy provision, he showed a traditional discomfort that drafters had to
speak to such distasteful issues:

Clause 361 and 362 relate to an odious class of offences
respecting which it is desirable that as little as possible should be said …
[We] are unwilling to insert, either in the text or in the notes, anything
which could give rise to public discussion on this revolting subject; as we are
decidedly of opinion that the injury which would be done to the morals of the
community by such discussion would far more than compensate for any benefits
which might be derived from legislative measures framed with the greatest
precision.[53]

Despite this, however, Macaulay tried in fact to rationalize
the British offense of "buggery." All the old vagueness around the term called
out for clarification, and the colonies were the place to put this into
practice. Macaulay came up with a broader definition of the violation of the
"order of nature," involving any kind of offending "touch." But he introduced
a new axis of classification, according to whether the act was consensual or
not-something never relevant in the old crime of "buggery." He chose to impose
fresh language on India. Two clauses pertained to "Unnatural Offences,"
distinguished by the element of consent:

Cl. 361 Whoever, intending to gratify unnatural lust,
touches, for that purpose, any person, or any animal, or is by his own
consenttouched by any person, for the purpose of gratifying
unnatural lust, shall be punished with imprisonment … for a term which may
extend to fourteen years and must not be less than two years, and shall also be
liable to fine.

Cl. 362 Whoever, intending to gratify unnatural lust,
touches for that purpose any person without that person's free and
intelligent consent, shall be punished with imprisonment … for a term which
may extend to life and must not be less than seven years, and shall also be
liable to fine. [emphasis added]

The "injunction to silence"[54] that Coke and
other jurists had promoted around the vocabulary of "sodomy" continued to be
powerful, however. When the final draft of the Indian Penal Code came into
force in 1860, the "Unnatural Offences" section was modified. The ultimate,
historic text-which, in one form or another, influenced or infested much of the
British Empire-read:

Section 377: Unnatural offences – Whoever voluntarily has
carnal intercourse against the order of nature with any man, woman or animal
shall be punished with imprisonment for life, or with imprisonment … for a term
which may extend to 10 years, and shall be liable to fine.

Explanation – Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in this Section.

The reasons for the change remain unclear, but its effects
are evident. On the one hand, this version went back to the outlines of the old
standard of "buggery," replacing the reference to "touching" with the criterion
of "penetration." There were still plenty of ambiguities (including the
question of what had to penetrate what). These in turn let future colonial
and post-colonial jurists redefine what these provisions actually punished.

On the other hand, the attempt to organize the offense
around the axis of consent/non-consent was dropped. In principle, stipulating
that the act had to be "voluntary" meant the victim of forcible "carnal intercourse"
could not be criminalized. But the other actor received the same punishment,
and was guilty of the same offense, whether the act was forcible or not.
Despite the code's modern pretensions, the provision offered no differing
standard of harm based on the use of force.

Thus the separate Penal Code provision addressing rape
(Section 375) remained restricted to a man's rape of a woman. No distinct
criminal offense was entailed in a man's sexual assault on another man; it was
simply lumped with consensual offenses in Section 377. Section 377 also had no
separate provision or protection prohibiting an adult male from having sexual
relations with a male child. That offense, too, was contained in 377 without
distinction.[55]

As a result, India-along with other countries from Zambia to
Fiji with legal systems affected by the Indian Penal Code-was left without laws
fully covering rape or child protection. To the drafters, the act of "sodomy"
itself was so horrible that the harm seemed uniform: regardless of the other
party's age, and regardless of whether he consented or not. Section 377
appeared in a Penal Code section on "Offenses Affecting the Human Body." The
fiction that "carnal knowledge against the order of nature" violated one's own
physical integrity, even if consented to, seems to have been powerful. (As the
next chapter notes, it found fodder in medical myths that supposed the
"habitual" sodomite prone to literal physical deformation).

Section 377 was exported to, and modified in other British
colonies, and reinterpreted by their courts. Two themes emerge. They show again
how colonial law was a field for exploring the meaning of an old British
standard.

oBy defining "carnal knowledge" in terms of penetration, the
Indian Penal Code language limited the act and left open the possibility that
only the penetrating party might be guilty. As the law was applied in British
colonies in subsequent years, one project was to redefine the scope of
"penetration"-and ensure the provision would criminalize as broad a range of
acts, and partners, "against the order of nature" as possible.

oThe absence of the factors of age or of consent in the law meant
that consensual homosexual conduct was legally indistinguishable from rape or
pedophilia. Thus the figure of the "homosexual" could easily be linked and
assimilated-in popular thinking as well as before the law-to violent sexual
criminals.

Finally, the "modernization" of British law in the Indian
Penal Code was almost immediately exported back to Britain itself. The 1861
Offences against the Person Act dropped the death penalty for the "abominable
crime of buggery," imposing a sentence modeled on that in the IPC.[56]

British law at home underwent a further refinement in 1885,
during a revision of laws on the "protection of women, girls [and] the
suppression of brothels." Henry Labouchere, a member of Parliament, introduced
an amendment so unrelated to the debate that it was almost ruled out of order.
When finally passed, it punished "Any male person who in public or private
commits or is a party to the commission of or procures or attempts to procure
the commission by any male person of any act of gross indecency with another
male person," with two years at hard labor. "Gross indecency" was a broad
offence designed to include virtually all kinds of non-penetrative sexual acts
between two men. Unlike the 1861 "buggery" law, the Labouchere Amendment also
explicitly extended to private acts. The press quickly dubbed it the
"blackmailer's charter." Oscar Wilde was convicted under its terms in 1895.[57]

Labouchere's law acknowledged that two men could practice
many other sexual acts than "sodomy." A society ambitious to extirpate such
acts needed an express acknowledgement of its power over privacy, and a wider
criminal framework to punish them.

Labouchere's provision came too late to be introduced in the
Indian Penal Code itself. However, subsequent colonial codes incorporated
versions of it, including codes that derived from the IPC. It appeared in the
Sudanese Penal Code in 1899, and in the influential penal law of Queensland in
the same year. Malaysia and Singapore received the gross indecency provision
jointly through an amendment in 1938.[58]
Moreover, as explained below, subsequent jurisprudence in India (particularly
the Khanu judgment) expanded the scope of "unnatural offences" to
include what would otherwise have been "gross indecency" under British law.
Further, though Labouchere's innovation only spoke of male-male sex, some
governments have made "gross indecency" apply to sex between women-by dropping
the "male" before "person" (as detailed below in chapter IV).

The Indian Penal Code became the model for British colonies'
legal systems throughout most of Asia and Africa. Each territory took over the
newest version, one legal historian writes, "improving and bringing them up to
date, and the resulting product [was] then used as the latest model for an
enactment elsewhere."[59]
The Straits Settlement Law of in 1871, covering territory that today
encompasses Singapore, Malaysia, and Brunei, effectively duplicated the IPC.[60]
Between 1897 and 1902 administrators applied the Indian Penal Code in Britain's
African colonies, including Kenya and Uganda.[61] Some British
residents complained about the undemocratic character of the codes. British
East Africans, for instance, protested a policy of placing "white men under
laws intended for a coloured population despotically governed."[62]

The Sudanese Penal Code of 1899 also adapted the IPC, but
shows a different strain in codifying "unnatural offences." It reintroduced,
uniquely among British colonies, the axis of consent and a form of
differentiation by age. Its version of Section 377 reads:

S. 318 Whoever has carnal intercourse against the order of
nature with any person without his consent, shall be punished with
imprisonment for a term which may extend to fourteen years and shall also be
liable to fine; provided that a consent given by a person below the age of
sixteen years to such intercourse by his teacher, guardian or any person entrusted
with his care or education shall not be deemed to be a consent within the
meaning of this section [emphasis added].[63]

Similarly, while the Sudanese code adopted the "gross
indecency" provision, it only punished it when non-consensual.[64]
These distinctions were lost after independence, however, when in 1991 Sudan's
government imposed a shari'a-inspired penal code.[65]

The Penal Code of the Australian colony of Queensland (QPC)
was drafted in 1899 by the colony's chief justice, Sir Samuel Griffith.[66]
It came into force in 1901 and was the second most influential penal code after
the IPC, especially in British Africa. The QPC introduced into the IPC's
version of "unnatural offences" the category of the "passive" sexual partner-the
one who "permits." Section 208 read:

Any person who –

(a) has carnal knowledge of any person against
the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to
have carnal knowledge of him or her against the order of nature, is guilty of a
felony and is liable to imprisonment for fourteen years [emphasis added].

This eliminated one of the ambiguities in the IPC, making
clear that both partners in the act were criminal. The QPC also widened the
ambit beyond "penetration," by introducing an independent provision for
"attempts to commit unnatural offences."[67] Thus any sexual
act or approach not resulting in penetration could be called an "attempt."

Outside Australia, the QPC first took root in Papua New
Guinea. The chief justice of Northern Nigeria, H.C. Gollan, then decided to
adopt it as the model for his colony's penal code, which came into force in
1904. It then became the subject of bureaucratic battles between colonial
administrators; officials in Southern Nigeria were divided between proponents
of the QPC and supporters of the Indian Penal Code.[68]
The former finally won out. In 1916, two years after Nigeria combined into a
single colony, a common criminal code based on the QPC was adopted. [69]

That process reveals a point. Despite the claims of modern
political leaders that anti-sodomy laws represent the values of their
independent nations, the Queensland Penal Code spread across Africa indifferently
to the will of Africans.

The whims, preferences, and power struggles of bureaucrats
drove it. After the Criminal Code of Nigeria was imposed, colonial officials
in East Africa-modern Kenya, Uganda, and Tanzania-moved gradually to imitate
it. A legal historian observes that the "personal views and prejudices" of
colonial officials, rather than any logic or respect for indigenous customs,
led to replacing IPC-based codes with QPC-based codes in much of the continent.[70]

The versions of "unnatural offences" that spread with the
QPC now encompassed a variety of acts: they punished a passive partner in
sodomy, attempts at sodomy, and also "gross indecency." For instance, Uganda's
Penal Code provided that:

S. 140: Any person who (a) has carnal knowledge of any
person against the order of nature; or (b) has carnal knowledge of an animal;
or(c) permits a male person to have carnal knowledge of him or her against the
order of nature, is guilty of a felony and is liable to imprisonment for
fourteen years.

S. 141 Any person who attempts to commit any of the
offences specified in the last preceding section is guilty of a felony and is
liable to imprisonment for seven years.

S.143 Any male person who, whether in public or private,
commits any act of gross indecency with another male person, or procures
another male person to commit any act of gross indecency with him, or attempts
to procure the commission of any such act by any male person with himself or
with another male person, whether in public or private, is guilty of a felony
and is liable to imprisonment for five years.

Nigeria did offer variations from the trend. Its version
narrowed "carnal knowledge" to exempt sex between "a husband and wife," making
clearer what it understood by the "order of nature."[71] The
law zeroed in toward its primary focus on sex between men.[72]

Three generalizations arise from the confused history of
"carnal knowledge" in colonial penal codes.

The anti-sodomy provisions that contemporary politicians
defend as part of indigenous values never drew on local customary law, nor
were they drafted through a deliberative process. Colonial officers
devised and imposed them. They saw the sex laws as necessary precisely
because they viewed local cultures as lax, a haven for "unnatural
offenses."

Colonial authorities continuously grappled with terms and
definitions, trying to arrive at both adequate language and common
understandings around "unnatural offences." But they did so under the
shadow of a moral anxiety about the effects of debate, an injunction to
silence that helped justify autocratic lawmaking with no discussion among
the "subject" peoples.

Redefinition tended to widen the scope of the law-and to
criminalize not just sexual acts, but a kind of person.

III. Colonial Power on the Street and over the Body

Why was criminalizing consensual homosexual conduct
important to the colonial, and post-colonial, state?

No single explanation can describe what happened-what is
still happening-in places as distant and different as Zambia and Singapore. One
hint, though, lies in the other laws and practices colonizers imported along
with anti-sodomy provisions. Those provisions were part of a package, one that
extended the "civilizing," reforming mission-and the power and the knowledge-of
the still-tenuous colonial apparatus over both broader and more intimate areas
of life. The state rigidly policed the public sphere and people's bodies. Many
of its mechanisms are still working.

From "Vagrant" to "Eunuch"

Vagrancy laws target people whom officials see as wandering or
loitering with no purpose. Beyond that, though, they help to rid the public sphere
of people not wanted there: to "alleviate a condition defined by the
lawmakers as undesirable," as one commentator observes.[73] They
do not require a "proscribed action or inaction," another writes, but depend on
a "certain personal condition or being a person of a specified character."[74]
They make people criminals for what they are, not what they do.
And not every "wanderer" qualifies as a target. Enforcement usually aims
selectively at despised groups such as migrant laborers, the poor, the
homeless, beggars, travelers, or street children.[75]

In Europe for centuries, legal and administrative measures
controlling "vagrancy" criminalized poverty, to keep it and the effects of
economic dislocation out of sight.[76]
Brutal laws in England had been a fixture at least since the Tudor period, when
enclosures and privatizing common land had caused vast increases in the numbers
of homeless, drifting poor. A 1572 act required "Rogues, Vagabonds, or sturdy
Beggars" to "be grievously whipped, and burnt through the gristle of the right
Ear with a hot Iron."[77]
The United Kingdom's 1824 Vagrancy Act systematized both classification and
punishment of undesirables for a bourgeois age. Anyone begging or sleeping out,
as well as appearing to engage in prostitution or acts associated with a
"disreputable mode of life," could be convicted as "idle and disorderly" and
sentenced to two weeks' hard labor. Multiple convictions, or conspicuous
poverty, led one to be classed as a "rogue and vagabond" or, worse, an
"incorrigible rogue," in a descending ladder of permanent legal stigma.[78]
This breadth and sweep of preemptive classification remained a feature of
vagrancy laws into the twenty-firstcentury. (In California, for
instance, a 1950s legal change revised the former common-law definition of a
vagrant as "a wanderer from the place where he worked," to one where any "idle,
or lewd or dissolute person" could be classed as vagrant.[79])

The 1824 law was a model for equally broad criminalization
of "vagrancy" throughout British colonies. The Bengal Vagrancy Act and the
Bombay Beggary Prevention Act are classic examples. Most such colonial-era laws
used the same tripartite distinction between "idle and disorderly persons,"
repeat offenders who are "rogues and vagabonds," and "incorrigible rogues";
many laws heightened punishments over their British forebear. And most of these
laws still remain in effect. Zambia's Penal Code, for example, makes any "idle
or disorderly person" (including "every person who, without lawful excuse,
publicly does any indecent act") liable to a month in prison; a repeat
conviction can cause one to "be deemed a rogue and vagabond" with a far steeper
sentence. These categories give the government wide latitude to control public
expression (Section 27 of the 1906 public nuisance law in Singapore includes
under "rogues and vagabonds" people who show "any obscene print, picture or
other indecent exhibition") as well as almost any other conduct in public. (In
Zambia, "rogues and vagabonds" include "every person found wandering … in any
public place at such time and under such circumstances as lead to the
conclusion that such person is there for an illegal or disorderly purpose."[80])

In the colonies, these laws both served the "civilizing
mission" and gave police enough power to punish almost any behavior, or people,
they wanted. Sexual conduct-or sexualized identities-were among those singled
out. The 1899 Sudanese Penal Code is an instructive instance. As noted earlier,
this code, unique among British colonial laws, did not punish consensual
sodomy. It compensated, however, by creating a new identity within the
"habitual vagabond": the "catamite." (The Northern Nigeria code also followed
this example). The code listed seven types of "vagabonds," one of them the
"catamite," defined as a "any male person who 1) dresses or is attired in the
fashion of a woman in a public place or 2) practises sodomy as a means of
livelihood or as a profession."[81]

A person's clothing became not only criminal in itself, but
potentially the sign of a criminal sexual history. One legal commentator
clarified that "catamite" meant a "habitual" practitioner of sodomy, adding
that "it is not necessary to prove when and where any individual act of this
nature occurred."[82]
Beyond the person's appearance, no evidence was needed for his (or her) arrest
and jailing.

In Europe, vagrancy laws targeted the poor, but rarely had
an explicitly racial side.[83]
In the colonies, everything was racial. These laws regulated the movements,
and controlled the conduct, of the non-white population. In British India,
moreover, legislation notoriously marked out whole tribal (and other) groups as
intrinsically, unchangeably criminal. The Criminal Tribes Act of 1871 in India,
inspired by vagrancy laws, defined certain tribal communities collectively as dacoits,
thieves, and undesirables. These provisions are a high-water mark in
European legal racism. "Nomadic tribes are invariably addicted to crime," one
administrator wrote.[84]
To be born in a community that was listed as a criminal tribe put one under
permanent legal disability. All members of criminal tribes had to register
individually with the authorities; non-registration could lead to prosecution. Once
registered, the tribe member's movements were restricted to authorized areas,
and she or he could be arrested if found outside them-or even inside them, if
discovered in suspicious circumstances-with a penalty up to three years in
prison.[85]

British authorities associated nomadism not only with crime
but with sexual immorality. The criminal tribes "implied absolute
licentiousness" to the colonizers, one historian notes.[86] A
British administrator's 1914 study monotonously repeats its judgments on one
ethnic group after another: "The women of the tribe are notoriously immoral";
"Nearly all the girls of the tribe are reserved for prostitution"; "Immorality
is very prevalent"; "The women, from their vagrant life, naturally bear an
indifferent character. … Girls have considerable liberty before marriage, and
lapses from virtue on their part are not seriously dealt with"; "Their women
are all prostitutes." [87]

Along these moralizing lines, authorities amended the Act in
1897 expressly to include "eunuchs" as a notified group. A eunuch was "deemed
to include all members of the male sex who admit themselves, or upon medical
inspection clearly appear, to be impotent." In practice, this meant India's hijras,
presumed to be sexually immoral and guilty of "sodomy."[88]

Hijras-possibly derived from the Urdu word ezra meaning
a nomad or wanderer-form a large community of people in India who, born male,
live their lives as female or third-gender. In many traditional Indian cultures
they had a defined and permitted social niche.[89] Under the statute,
though, any "eunuch" who appeared"dressed or ornamented like a woman in
a public street … or who dances or plays music or takes part in any public
exhibition, in a public street" could be arrested without warrant and imprisoned
for up to two years. The law denied eunuchs legal personhood, including the
rights to draw up a will or to adopt children. Local authorities had to keep a
register of all eunuchs "reasonably suspected" of "committing offences under
Section 377 of the Indian Penal Code."[90]

The British considered hijra communities in India a
"distasteful nuisance."[91]
Colonial authorities obstructed their traditional rights, including rights to
land and money they owned, in villages across India.[92] Anti-begging
provisions in vagrancy laws, such as those in the Bombay and Bengal
Presidencies, also criminalized the customary social niche of hijras as
mendicants. The 1897 amendment-subtitled "An Act for the Registration of
Criminal Tribes and Eunuchs"-linked "eunuch" identity to Section 377. It showed
how the vagrancy and sodomy provisions stemmed from the same motive: to place
not just behaviors, but classes of people, under surveillance and control. Colonial
vagrancy laws ultimately made the "personal condition" of being a hijra a
criminal offence. One Indian human rights organization observes that

The sexual non-conformity of the eunuch thus earned severe
strictures and penalties from the colonial administration. Being a eunuch was
itself a criminal enterprise, with surveillance being the everyday reality.…
The role of the police in inflicting violence through and outside the law
governed their lives as much as it governed the lives of the former criminal
tribes. However … it is important to note that because of the stigmatized
nature of their sexualities, the eunuchs never found a voice in nationalist or
subaltern histories.[93]

The categories of the vagrant catamite and criminal eunuch
allowed the state to arrest people on the presumption of sodomy, without proof
of an actual act. Being, or looking like, a certain kind of person became the
basis for harassment, arrest, detention, and abuse.

Forensic Mythologies

"Infundibuliform" means "funnel-shaped." An unusual word, it
has been used to describe two things in particular-the shapes of certain
flowers, and the anuses of "habitual sodomites." Colonial law, predictably, was
more interested in the latter.

Its concern can be seen in one of the first reported cases
under Section 377 of the Indian Penal Code to be appealed. In Queen-Empress
v. Khairati[94]
in 1884, the sessions judge convicted the anonymous hijra defendant
(called only Khairati or beggar)under 377, on the charge "that
he, within four months previously to the 15th of June (1883), the
exact time it being impossible to state, did in the district of Moradabad abet
the offence of sodomy, by allowing some unknown person to commit the offence of
sodomy on his person." Khairati was called a "eunuch," as he "was
found singing dressed as a woman among the women of a certain family."

The trial court stated that"he is shown to have the
characteristic mark of a habitual catamite - the distortion of the orifice
of the anus into the shape of a trumpet … which distinctly points to
unnatural intercourse within the last few months." [95]Thus Khairati was not tried for any particular incident of sodomy: the only
clue was clothing-substantiated by later medical examination. The lower court
stated that "the three facts proved against the accused-his appearance as a
woman, the misshapement [of the anus], the venereal disease-irresistibly lead
to the conclusion that he has recently subjected himself to unnatural lust."
The appeals court set aside the conviction because there was no specificity
about the act: time, place, and identity of the "accomplice" were unknown.
However, the judge called official attempts at "checking these disgusting
practices … laudable."[96]

In Khairati, the first court took the forensic
evidence as proof that sodomy definitely had happened at a prior time. Despite
the appeals judge's demand for specificity, the authorities' "laudable" medical
endeavors would continue-and would gain general acceptance as evidence.

The full impact of sodomy laws cannot be understood by
looking at the legal offence alone. Evidentiary requirements to prove the
offence of sodomy have helped to establish the state's authority over the
suspect body, as well as to create the criminal identity of the homosexual.

All sexual offences give the state unusual power to
undertake interventions directly into people's bodies: to determine the
occurrence of the offence, to separate truth from false accusation, and often
to establish the exact extent to which sexual interaction took place. Thus, for
example, forensic medical experts must examine a rape victim-especially in
common-law countries-to search for physical injuries or other signs of assault.
Forensic doctors also helped establish regimes for the control of sex workers.
The various nineteenth-century Contagious Diseases Acts enacted in Britain and
throughout its colonies created the category of the "common" or habitual prostitute.
Under those acts, women's bodies were subjected to brutal medical exams. A
diagnosis of venereal disease was the equivalent of criminal conviction, and
led to jailing.[97]

Forensic medicine in the Victorian era also invented elaborate,
imaginary sets of signs to find the "habitual sodomite." As Michel Foucault
wrote: "The nineteenth-century homosexual became a personage, a past, a case
history, and a childhood … with an indiscreet anatomy and possibly a mysterious
physiology."[98]

The French forensic doctor Auguste Ambroise Tardieu
published his hugely influential treatise on identifying the prostitute and the
"pederast" in 1857. Six infallible signs, he believed, marked out the latter:
"the excessive development of the buttocks; the funnel-shaped deformation of
the anus; the relaxation of the sphincter; the effacement of the folds, the
crests, and the wattles at the circumference of the anus; the extreme dilation
of the anal orifice; and ulcerations, hemorrhoids, fistules."[99]
In Britain, Glaster's Medical Jurisprudence and Toxicology followed
Tardieu: in editions stretching into the twentieth century it proclaimed "an
infundibuliform shape of the anus" as a confirmed sign of the passive sodomite.[100]

Human Rights Watch has documented examinations to detect
such imaginary deformations, in countries from Egypt to Zimbabwe. They invade
bodily privacy. Conducted without consent in carceral conditions, they are
torture. The theories underlying them are medically worthless. Dr. Lorna
Martin, professor of forensic pathology at the University of Cape Town, South
Africa, told Human Rights Watch that Tardieu's theories are "bizarre and
antiquated … rubbish." She added, "It is impossible to detect chronic anal
penetration; the only time the [forensic anal] examination could be of any use
is for acute non-consensual anal penetration, when certain injuries may be
seen."[101]
Nonetheless, the fact that they still take place suggests they are important
not only for the medical mythology behind them, but because their component
elements-the subject's humiliation, and the assertion of the government's power
over his body-support, in a drastic and torturous way, the state's policing of
sexuality.

Various Indian forensic-medical experts followed the
writings of Tardieu and Glaster, adding new parameters based on their own
understanding of the "difference" in sodomites's bodies. They claimed the
"catamite" or "sodomite" as a scientifically separate manner of person,
physically distinct. Ejaz Ahmed, for example, points to the "patulous state of
the anus, and the destruction of the folded or puckered state of the skin in
this part."[102]
Narayan Reddy takes the notion of dilation further and provides a rough
sphincterometer, requiring as proof an opening of "4 to 5 cm. in diameter
through which rectum can be seen."[103]
Another forensic expert moves beyond just the physical signs of penetration to
the way the sodomite prepares his appearance. He lists "the shaving of the anal
hair but not necessarily the pubic hair" as evidence to impugn a habitual,
passive sodomite.[104]

These conjectures by forensic writers are not attempts to
document single sexual acts, but to infer life histories and an identity.[105]
In the colonial Indian case of D. P Minwalla v. Emperor the defendantused the un-infundibuliform, unmarked character of his anus
to maintain he had an un-criminal past. Minwalla was caught in the act of anal
sex with another man. To exonerate himself, he submitted to a medical
examination to convince the court his anal orifice was not shaped like a
funnel. The appeals court confirmed Minwalla's conviction but with a reduced
sentence, mindful that the physical examination suggested this had been a
momentary lapse rather than a habitual identity.[106]

Much as women's sexual histories can be manipulated to deny
them protection in rape cases, the status of a "habitual sodomite" means, in
effect, losing the right to refuse consent.[107] A 1981 case from
independent Pakistan is illustrative. Pakistan inherited the Indian Penal Code
and retains Section 377; in the 1970s, however, the government's program of
Islamizing national law also introduced the offence of zina, which among
other things punishes sex between men when coupled with abduction.[108]
In Muhammad Din two men were charged with zina for raping another
young man at a railway station in Lahore. The medical examination of the
accuser, though, found his anus "moderately funnel shaped and he appeared to be
a habitual passive agent." Based on this, the court threw out the victim's
claim. The view that he willingly participated in sex "received support from
the medical evidence that he appeared to be a habitual passive agent." The
court thus refused to believe "that the complainant had been kidnapped or
abducted for the purpose of subjecting him to unnatural lust." It dropped the
charge of zina.[109]

IV. Interpreting Sodomy Laws: The Scope Expands

Forensic medical exams display the particularity to which
the state descends when it tries to parse out the specifics and the evidence of
sexual acts. The story of how courts in the colonial period and beyond
interpreted the various versions of Section 377 also shows state authorities
stuck in morasses of sexual detail. Together, they exhibit the logical
gymnastics states get into in defining the line between permissible and
punishable sexual acts-and trying to keep a rationale for the distinction.

One distinction that never mattered much,
in "unnatural offences," was the axis of consent. Most of the surviving
jurisprudence under colonialism and since independence (what reached the law
reports were largely cases on appeal, undoubtedly representing only a fraction
of convictions) deals with charges of non-consensual sodomy. Nearly
universally-as one Zimbabwean legal expert writes-the fact that "an
assault (possibly violent) has taken place is of secondary importance" to the
court.[110]
The law's silence on consent translates into judges' indifference to the
victim. It also reaffirms that "the non-existence of a victim," where there
was consent, is no hindrance to prosecution. [111]

This chapter will show:

First, investigating the details of sexual acts led to
further expanding the scope of acts covered by Section 377. The law came
to recognize broader categories of "sexual perversion," and while that
extended into acts committed by heterosexual couples, the "sodomite" or
"catamite" or "homosexual" was at the center of its meaning.

Second, Section 377's failure to distinguish consensual
from non-consensual acts, or to offer separate protection to minors from
abuse, led to identifying "homosexuality" with other violent sex
crimes-intensifying the legal stigma.

Third, British law never punished sex between women-and
hence British colonialism never imported criminal penalties for it.
However, the breadth of the British "gross indecency" provision has given
states an opening to penalize lesbians as well.

Jurisprudence: From "Crimes against Nature" to
Communal Values

In 1930s India, police captured a young man called Ratansi
while he and another man were trying to have sex. In court, Ratansi did not
deny it. The furious judge called him a "despicable specimen of humanity,"
addicted to the "vice of a catamite" on his own admission.[112]
It was not just the act in isolation that appalled the court: it was the
contemptible class of person. Yet the judge could not punish the two accused:
they were caught before they could finish the act. A gap yawned between his
repulsion at the arrested men, and the evidentiary limits his understanding of
the statute demanded. Conviction required penetration, and physical or other
proof.

Much of the later jurisprudence around Section 377, in the
many places where it was enforced, would try to close that gap: to re-draw the
sexual map of "immorality" and cram a sufficiently wide range of acts within
the criminal compass, so that no "despicable specimen of humanity" would be
acquitted. What counted as "unnatural" and, as one commentator observes, "what
counted as penetration continued to be an ongoing, arbitrary, and unsystematic
discussion" across courts and countries.[113]

"Carnal intercourse against the order of nature" had never
been precisely defined. One of the first Indian cases to reach the law reports
on appeal, though, reflected what was probably the usual judicial
understanding. The phrase meant anal sex, since "the act must be in that part
where sodomy is usually committed."[114]

The 1925 Indian case of Khanu v. Emperor[115]
took the first step toward redrawing the boundaries of Section 377. It became,
for a long time, the guiding judgment on interpreting 377 through British
colonies in South Asia, East Asia, and East Africa. The case involved forcible
oral sex between an adult male and a minor. The non-consensual nature of the
act played no role in the appeals decision. The only question that concerned
the court was whether oral sex was an unnatural carnal offence under Section
377.

Khanu said yes. 377 was not limited to anal sex.[116]It cited two lines of reasoning.

The first defined the order of nature in sex as "the
possibility of conception of human beings": oral sex was legally like anal sex
in that it was not reproductive. The colonial court's complete divorce from the
Indian context-its reliance on purely European traditions of sexual propriety,
which conflated nature with procreation-could not have been clearer. Nor did
the court consider that other forms of penetrative sex (for instance, using birth
control) also foreclosed the "possibility of conception." [117]

The second line of thinking redefined penetration. The
court defined "carnal intercourse" as

a temporary visitation to one organism by a member of the
other organism, for certain clearly defined and limited objects. The primary
object of the visiting organism is to obtain euphoria by means of a detente of
the nerves consequent on the sexual crisis. But there is no intercourse unless
the visiting member is enveloped at least partially by the visited organism,
for intercourse connotes reciprocity.[118]

As long as there is an orifice (the mouth) to enclose the
"visiting member," there can be carnal intercourse. When it cannot lead to
procreation, there is an "unnatural offence."[119]

Khanu opened the way to bringing other acts under the
scope of Section 377. For example, a 1961 case from East Pakistan(present-day
Bangladesh) found that the identical provision in the Pakistan Penal Code
criminalized what it called "thigh sex."[120] The court
followed the penetration-specific definition of Khanu and held that "the
entry of the male organ of the accused into the artificial cavity between the
thighs of [the other partner] would mean penetration and would amount to carnal
intercourse."

The post-independence Indian case of Lohana Vasantlal also
followed and modified the Khanu decision.[121]
On the facts, much like Khanu, it involved three men who forced an
underage boy to have anal and oral sex with them. However, the judgment
neglects the injury caused to the boy who was forced to undergo the sexual act:
there is no discussion of coercion. Instead the court concentrated on including
oral sex under 377. As with other appealed cases involving coerced sex, the
court's reasoning would apply seamlessly to consensual acts.

Lohana Vasantlal agreed with Khanu in finding
oral sex unnatural: the "orifice of the mouth is not according to nature meant
for sexual or carnal intercourse."[122]
The court applied two tests. Its main source, tellingly, came from the UK: the
eminent British sexologist Havelock Ellis. Following him, it argued that oral
sex might be permissible if it was part of foreplay leading to "natural"
(vaginal) sex: "If the stage of the aforesaid act was for stimulating the sex
urge, it may be urged that it was only a prelude to carnal intercourse."[123]
However, again citing Ellis, it found that when forms of sex play cease being
"aids to tumescence" and "replace the desire of coitus," then "They became
deviations … and thus liable to be termed 'perversions.'"[124]The Lohana court also developed an "imitative test" for sex acts.
For example, oral sex imitated anal sex in terms of penetration, orifice,
enclosure, and sexual pleasure. Therefore it could also be punished under
Section 377.

K. Govindan, a 1969 Indian case, used the "imitative
test" from Lohana to arrive at the same conclusion as the court in
former East Pakistanon "thigh sex": if "the male organ is 'inserted' or
'thrust' between the thighs, there is 'penetration' to constitute unnatural
offence."[125]

The judge in Khanu had said, "I
doubt if mutual cheirourgia would be" a form of "carnal intercourse"-turning to
Greek to dredge up a euphemism for masturbation.[126]However, a court moved mutual masturbation under the ambit of
Section 377 in the Indian case of Brother John Antony v. State[127]in 1992. In this case, again, allegations of coercion were of no interest
to the court. The judgment instead delves into the "sexually perverse,"
analyzing and analogizing practices like "tribadism,"
"bestiality," "masochism," "fetichism," "exhibitionism," and "sadism."[128]
Using the imitative test, it concluded that mutual masturbation falls within
377, as "the male organ of the petitioner is said to be held tight by the hands
of the victims, creating an orifice-like thing for manipulation and movement of
the penis by way of insertion and withdrawal."[129]

In Singapore, two cases from the 1990's-PP
v. Tan Kuan Meng[130]and PP v. Kwan Kwong Weng[131]
-followed the distinction (between "prelude to" and "substitute for" the act of
"natural" sex) that Lohana had laid down. Each of these 377 trials
involved a woman's allegation that a man had forced her to have oral sex. The
court in Kwan Kwong Weng defined the crime as "fellatio between a man
and woman, whether the woman consented or not, which was totally irrelevant."[132]

Kwan Kwong Weng weighed current mores among
heterosexuals, taking note of "statistical evidence … of these forms of oral
sex being practised in Singapore. We cannot shut our minds to it."[133]
The court granted "it is a fact of life that foreplay occurs before
copulation." And it held that "when couples engaged in consensual sexual
intercourse willingly indulge in fellatio and cunnilingus as a stimulant to
their respective sexual urges, neither act can be considered to be against the
order of nature. In every other instance the act ... will be ... punishable." [134]

Heterosexual oral sex was thus like a middling restaurant in
the motorists' guide: worth a detour, but never, ever deserving a journey in
itself. Heterosexuals, though, had a legal leeway for oral sex that was denied
to homosexuals. They could claim that "natural," vaginal sex was somewhere off
in distant view, the long-planned destination after a diversion to a different
orifice.

However, both Lohana and Kwan Kwong Weng
subtly undermined the foundations of the old Khanu ruling, by quietly
discarding the "procreation" justification. The judge in Kwan Kwong Weng accepted
implicitly (as the statistics before the Singapore court suggested) that people
have sex for pleasure in and of itself–a major judicial concession.

This opened again the question: how confidently can the law
distinguish between "natural" and "unnatural"? The lack of a self-evident
standard in the Kwan Kwong Weng case ultimately led to a renewed push in
Singapore for reforming the colonial-era provision. That push was given force
by more prosecutions of heterosexuals for oral sex. In 2004, Singapore courts
sentenced a former policeman to two years in prison for having oral sex with a
teenage girl.[135]
One judge spoke of "certain offences that are so repulsive in Asian culture …
There are countries where you can go and suck away for all you are worth.
People in high places do it for all they're worth. I'm not an expert, but you
read about it in the papers. But this is Asia."[136]

"Asia" was not as conservative as the judge thought.
Criminalizing homosexual acts was one thing; criminalizing heterosexual
acts by now sparked outrage. Press and public opinion rebelled at the
presumption that straight "sucking" was alien to Singapore. Under pressure, the
government launched a review of the law. Officials said from the beginning it
would aim to decriminalize consensual oral sex between men and women, but leave
all oral sex between men banned.[137]

That was what happened. The review eventually turned into a
revision of the entire Penal Code; but homosexual conduct was the only real
dispute. The government willingly discarded the "carnal intercourse" provision
of the law, which included heterosexual conduct. A battle line formed, though,
at Section 377A-the old Labouchere Amendment text, criminalizing "gross
indecency" between men. Human rights activists launched a petition to
eliminate the ban on consensual homosexual conduct, as well as liberating
heterosexuals; it gained thousands of signatures. LGBT advocates courageously
joined in public debate. Yet in 2007, the government at last determined to
cling to Section 377A.

Prime Minister Lee Hsien Loong voiced personal sympathy for
gay citizens: "We … do not want them to leave Singapore to go to more congenial
places to live." But, he added, "homosexuals should not set the tone for
Singapore society":

Singapore is basically a conservative society. The family
is the basic building block of our society. It has been so and, by policy, we
have reinforced this and we want to keep it so. And by "family" in
Singapore, we mean one man one woman, marrying, having children and bringing up
children within that framework of a stable family unit.[138]

Despite the reference to procreation, one thing was clear in
the debate: the criterion of "nature" had basically been thrown out the window.
If heterosexual oral sex could be legally seen as natural in itself-despite its
lack of any connection to "having children"-there was no coherent basis for
calling oral sex between two men "unnatural."[139]
One commentator wrote,

I am especially suspicious of arguments that resort to
"nature"; these have had an appalling history in justifying racism, sexism,
xenophobia and homophobia, leading to the murder and torture of millions of
people. What is natural? You might say that transplanting A's kidneys into
B's body is unnatural. The fact that an act is or isn't natural is not a good
reason to make it a criminal offence. [140]

Even the most virulent defenders of Section 377A argued not
by appealing to the "natural," but by theorizing about community values. One
parliamentarian declaimed,

If we seek to copy the sexual libertine ethos of the wild
wild West, then repealing s377A is progressive. But that is not our final
destination. The onus is on those seeking repeal to prove this will not harm
society. … We have no need of foreign or neo-colonial moral imperialism in
matters of fundamental morality. Heterosexual sodomy unlike homosexual sodomy
does not undermine the understanding of heterosexuality as the preferred social
norm.[141]

Yet relying on a "preferred social norm" actually undermined
the original foundations of the law, based on belief that "sodomy" was
"against the order of nature," not just the order of a particular society. And-most
importantly-foreign "moral imperialism in matters of fundamental morality" was exactly
what had brought the law to Singapore in the first place.

The Singapore story tears off the mask. It shows that
Section 377's central focus, despite the heterosexual acts it had always
punished, lay in eliminating homosexual conduct. It also shows, though, how
tenuous the case for that purpose had become. "Nature" was no longer a
credible justification. The mores of particular societies were all that was
left. As a Malaysian court had declared in 1979 (addressing a wife's claim that
her husband had sexual relations with other men): "Such despicable conduct though
permitted among some Westerners should not be allowed to corrupt the
community's way of life."[142]

Of course, the governments of Singapore and Malaysia, both politically
repressive states, had only limited interest in listening to that "community,"
or actually testing its values.[143]
Elsewhere too, though, invoking a vague set of "national" or "cultural" norms
became the main defense of the colonial-era sodomy laws. To the colonizers,
laws on sex were needed because the "native" was corrupt and an enticement to
moral corruption. Now it was the West that threatened to corrupt indigenous
standards.

A 1999 verdict from Zambia indicates how sour and weak the
argument around "nature" had turned, and at the same time how unconvincing the
appeal to popular beliefs could be. The judge in a local court, faced with
charges that a man had oral sex with other men, approached them through a
muddle of theology and anatomy:

Surely the mouth is not the same as a vagina. God gave
specific functions to each organ … The mouth is for eating etc., and the vagina
is for both sex and urinating. … Accused couldn't change God's desire. For
behaving in the way he did, he implied God made a mistake [in] his distribution
of functions.

Yet the conclusive factor for the judge, as he studied the
accusation under a British law brought to Zambian territory by colonial
invaders less than a hundred years before, was: "Accused's behavior is alien
to the African custom."[144]

Ignoring Rape, Intensifying Stigma

Consent in the British colonial anti-sodomy laws is
irrelevant. In a 1982 sodomy case, the court stated it clearly: "This is one of
the offences to which a victim cannot consent."[145]
Or, as an Indian court explained, "consent of the victim is immaterial" under
Section 377, simply because "unnatural carnal intercourse is abhorred by
civilized society."[146]

These laws, in their original form, are thus completely
silent about male-male rape. One sinister effect has been to place the victims
of such rape under the same legal stigma as people who engage in consensual
homosexual acts-or as the rapists. Sometimes, people who have suffered sexual
abuse have confronted criminal punishment themselves.

In a 1973 Papua New Guinea case, a man filed a
complaint against his employer for committing "sodomy" on him. He ended up
convicted himself, as an accomplice. The court believed he had "allowed"
himself to be sodomized, fearing he would lose his job if he protested.[147]

The court relied on a 1952 British decision that had
determined "the offence of buggery whether with man or beast does not depend
upon consent; it depends on the act and if an act of buggery is committed, the
felony is committed."[148]
Justice Prentice, writing a separate concurring judgment, stated that the word
"permit" does not necessarily imply consent, but can simply mean "that once a
person allowed, suffered or did not prevent … intercourse, having perceived
what was about to take place-the character of the act-he would be committing an
offence."[149]
The Justice also made clear that protecting individuals was not the provision's
purpose. "Buggery," he wrote, "is one of the offences of sexual indecency
which modern text writers see as not designed so much for private protection as
for the enforcement of officially received opinions on particular aspects of
sexual morality."

In practice, most courts probably do accept lack of consent
as a defense. A Ugandan commentary clarifies, "all participants in unnatural
offences are perpetrators, unless any of them is not a consenting party."[150]
However exceptional, the Papua New Guinea ruling still shows the sheer
travesties of justice the law's muteness around consent can generate.

Courts dealing with cases of non-consensual "sodomy"
continue to show little or no interest in the plight of the victim-only the
unnaturalness of the act.[151]
And this legal lacuna leads to media and popular opinion regularly mixing
"sodomy" up with rape. In Zimbabwe-where the law is similar-one activist says
"the angle of articles" in the press about consensual sodomy arrests "is always
… as far as possible to suggest that abuse was involved."[152]

Malaysia, as recounted below, has tried to address these
injustices by separating non-consensual "carnal knowledge against nature" from
consensual acts in the Penal Code. (The punishment for the two, however,
remains effectively the same.) In country after country, however,
British-derived laws continue to restrict the definition of rape to forcible
insertion of a man's penis in a woman's vagina. India's courts (both before
and after independence) in Khanu, Lohana, and K. Govindan have
widely expanded the scope of "sodomy": but judges have refused to extend the
meaning of rape to make it gender-neutral.[153]

In fact, as will be seen below, campaigns in Malaysia, Sri
Lanka, and Botswana that meant to create a gender-neutral definition of rape
ended with lawmakers re-defining "unnatural offences" to include sex between
women. Meanwhile, legislators have repeatedly denied demands by women's rights
activists to criminalize marital rape. Once again the heterosexual marital
sphere has been placed beyond the law's reach-both for consensual "unnatural"
acts and for rape itself.[154]

Equating consensual and coercive acts, and the lack of any
separate punishment for same-sex acts with children, together deepen the stigma
around homosexuality. The colonial court in Khanu hadconflated
pedophilia with consensual homosexual conduct between adults. It claimed "the
danger to young persons, lest they be indoctrinated into sexual matters
prematurely," as an important justification for anti-sodomy laws. The idea
lives on. India's Home Ministry has warned that "Removal of Section 377 will
open floodgates of delinquent behaviour."[155] The Indian
petition against 377 asks only that the High Court reinterpret the provision to
decriminalize consensual sex between adults-and leave standing the protection of
male children against abuse. Nonetheless, a senior Law Ministry official
defended the whole law, saying the Section "acts as an effective deterrent
against paedophiles and those with sick minds."[156]

Independent India's Supreme Court has held
that an offence under 377 implies "sexual perversity."[157]
This lends authority to linking homosexuality indiscriminately with almost any
kind of "perversion." As far back as 1958, a judge in colonial Malaysia
identified "sodomy" with sadomasochism, stating that "In view of the well-known
psychological connection between the giving and the suffering of pain and
sexual perversion, a sentence of whipping is not a suitable punishment for such
offence."[158]
An Indian court in 2001 alleged the "perversity" that leads to sexual offences
may result either in "homosexuality or in the commission of rape."[159]

"Gross Indecency" and Criminalizing Lesbians

"Gross indecency" in British-derived penal codes is highly
elastic. A Singapore Court has stated its meaning depends "on what would be
considered grossly indecent by any right-thinking member of the public."[160]
Just slightly more specifically, a 1998 amendment to the Tanzanian Penal Code
clarified that gross indecency included any act that "falls short of actual
intercourse and may include masturbation and indecent behaviour without any
physical contact."[161]
Thus two men kissing, holding hands, sleeping together, or conceivably even
looking at one another with sexual intent, could break the law.

On the one hand, "gross indecency," like its British
ancestor the Labouchere Amendment, only targets acts between men-as opposed to
"carnal knowledge," which could, at least as originally interpreted, also
include heterosexual acts. On the other, unlike "carnal knowledge," gross
indecency does not entail penetration. In practice it was used to root out men
who have sex with men who were caught in non-sexual circumstances, allowing
arrests wherever they gathered or met-parks and railway stations, bathhouses
and bars, and private homes and spaces. And unlike "carnal knowledge," the
absence of penetration meant a lower standard of proof. No forensic tests or
flower-shaped anuses were needed.

The usefulness of "gross indecency" in convicting men for
homosexual conduct comes clear in the 1946 Singapore case of Captain Marr.[162]
A naval officer faced charges of committing gross indecency with an Indian man.
There were no witnesses, but police found the Indian's shirt in the captain's
room. Such circumstantial evidence persuaded the court to convict.

The authorities are free to infer "gross indecency" from any
suspicious activity. The term is insidious, a legal bridge between "unnatural"
sexual acts and the associated identity of a certain kind of person: the
"homosexual" as a criminal offender. Homosexuality becomes a crime of the
"personal condition." This broader understanding of "unnatural acts" permits
state and police harassment on a wider scale. A homosexual need not be caught
in the act: presumptions fed by prejudice, or stereotypes of attire, manner, or
association, are enough.[163]

"Gross indecency" has been used to extend criminal penalties
to sex between women. Lesbian sex had never been expressly punished in English
law. The colonial court in Khanu excluded it from "carnal knowledge"
because a woman lacked a penis. A recent Ugandan commentary explains that
"women who perform sexual acts on each other are not caught by the current law
because they do not possess a sexual organ with which to penetrate each other."[164]
Non-penetrative sex is not "real" sex.[165]

Between men, however, it was seen as something sex-like
enough to be "grossly indecent." There was no reason the same logic could not
extend to women. Some modern governments did want lesbian acts and identities
moved under the criminal law. They found their chance through public debate
about reforming rape laws.

In the late 1980s the Malaysian women's movement campaigned
for a new, gender-neutral definition of rape, as well as for criminalizing
marital rape.[166]
Partially in response to their lobbying, the legislature in 1989 moved to amend
the Penal Code.[167]

In the end, however, legislators ignored the calls to
modernize law on rape, and instead turned their scrutiny to Section 377. Their
comprehensive re-write divided the Section into five different parts, while
broadening its meaning and reach more than ever before. Their excuse? They
could make rape effectively gender-neutral by adding a new crime of non-consensual
"carnal intercourse against the order of nature."[168]
The new provision also offered limited protection for children against sexual
abuse.[169]
But the two most significant changes were:

oFor the first time in a British-derived legislative provision,
"carnal intercourse" was expressly defined as both anal and oral sex.

oIn a vengeful and almost parodic response to the demands of
women's rights activists, the offence of "gross indecency" was made
gender-neutral.[170]
It could now be applied to heterosexual couples-and also to lesbian and
bisexual women. [171]

A similar, regressive rape law change occurred in Sri
Lanka. Falling back on religious and communal values, the state rejected
women's rights activists'demands to legalize abortion, criminalize marital
rape, and make the crime of rape gender-neutral. However, it did amend the
"gross indecency" provision to make it gender-neutral and apply to sex between
women.[172]

Meanwhile, in Botswana, legislators put gender-neutral
language in both the "carnal knowledge" and "gross indecency" provisions of the
British-derived Penal Code, in a general revision aiming at gender equity in
1998.[173]

V. Conclusion: The Emancipatory Potential
of Decriminalization

What are so-called "sodomy" laws for?

South Africa's Constitutional Court justice Albie Sachs,
concurring with the historic decision to overturn his country's law against
sodomy, wrote:

It is important to start the analysis by asking what is
really being punished by the anti-sodomy laws. Is it an act, or is it a person?
Outside of regulatory control, conduct that deviates from some publicly
established norm is usually only punishable when it is violent, dishonest,
treacherous or in some other way disturbing of the public peace or provocative
of injury. In the case of male homosexuality however, the perceived deviance is
punished simply because it is deviant. It is repressed for its perceived
symbolism rather than because of its proven harm. …. Thus, it is not the act of
sodomy that is denounced… but the so-called sodomite who performs it; not any
proven social damage, but the threat that same-sex passion in itself is seen as
representing to heterosexual hegemony.[174]

The legal scholar Dan Kahan writes that "Sodomy laws, even
when unenforced, express contempt for certain classes of citizens."[175]
This contempt is not simply symbolic. Ryan Goodman, in exhaustive research
based on interviews with lesbian and gay South Africans before the sodomy law
was repealed, found the statutes have multiple "micro-level" effects.These
impacts are independent of occasions when the law is actually enforced. To the
contrary: even without direct enforcement, the laws' malign presence on the
books still announces inequality, increases vulnerability, and reinforces
second-class status in all areas of life.

The laws "disempower lesbians and gays in a range of
contexts far removed from their sexuality (for example, in disputes with a
neighbor or as victims or burglary)," Goodman writes. They influence other
areas of knowledge: "the criminalization of homosexual practices interacts with
other forms of institutional authority, such as religion and medicine." The
statutes empower social and cultural arbiters to call the homosexual a
criminal. Goodman concludes that "The state's relationship to lesbian and gay
individuals under a regime of sodomy laws constructs … a dispersed structure of
observation and surveillance. The public is sensitive to the visibility of
lesbians and gays as socially and legally constructed miscreants."[176]

This report suggests that the colonial-era sodomy laws
ultimately became, not punishments for particular acts, but broad instruments
of social control. They started as invaders' impositions-an alien framework to subdue
subject populations-and have morphed over time into alleged mirrors of a
supposedly originary moral sense. States use them today to separate and
brutalize those beyond those postulated primal norms. They are terms of
division and tools of power.

The real impact of sodomy laws-the way they single out
people for legal retaliation, and make them ready victims of other forms of
violence and abuse-appears in stories from six countries addressed in this report.

India

In July 2001, police in Lucknow arrested four staff
members from two organizations that combated HIV/AIDS among men who have sex
with men. The HIV/AIDS outreach workers from Naz Foundation International
(NFI)'s Lucknow office and from Bharosa Trust were charged under Section 377 as
well as with criminal conspiracy and "sale of obscene materials": the police
interpreted distributing information about AIDS prevention as running a gay
"sex racket."

They were jailed for 47 days. A Lucknow judge denied them
bail, accusing them of "polluting the entire society." The prosecutor in
the case called homosexuality "against Indian culture." In jail guards
threatened and beat them; police told the prisoners they were "trying to
destroy our country by promoting homosexuality" and that "Hindus
don't have these practices-these are all perversions of the Muslims."[177]

In January 2006, the same police superintendent in
Lucknow oversaw the arrest of four more men under Section 377: the police said
they were engaged in a "picnic" in a public place, and accused them of
belonging to an "international gay club." An attorney in the case told Human
Rights Watch that undercover police agents logged into an internet chatroom and
pretended to be gay men, entrapping one of the victims into meeting, then
arrested him. In custody, he was threatened until he agreed to call several
acquaintances and arrange a meeting in person, at which point the police
arrested them as well. Press reports suggested that police obtained the
mobile telephone numbers or identifying information of 18 to 40 other gay men
in Lucknow, and that they were also investigating hundreds of other men in
India who had logged onto the website. [178]

Section 377 continues to provide a pretext for police
harassment, extortion, arrests, unreported and arbitrary detention, and other
abuses against LGBT people in India.[179]
The law creates legal stigma for lesbians as well. In 2006 in New Delhi the
father of a 21-year-old woman told the police that his daughter's lesbian
partner had "abducted" her. A magistrate refused to accept the daughter's
statement that she had left the parental home of her own free will, saying, "it
appears that …there are hidden allegations of an offence under Section 377 as
well."[180]

Reports also continue in India of forced detention of
lesbians and gays in psychiatric hospitals, and involuntary aversion therapy
and other forms of abuse aimed at "converting" people to
heterosexuality. In April 2001 the National Human Rights Commission of India
declared that it "did not want to take cognizance" of a case
objecting to these medical abuses. The commission stated that "sexual
minority rights did not fall under the purview of human rights." [181] Reportedly a member of the Commission told the press, "Homosexuality is
an offence under IPC, isn't it? So, do you want us to take cognizance of
something that is an offence?"[182]

Pakistan

In late 2006, in Faisalabad, Shumail Raj and Shehzina
Tariq married in a ceremony that Tariq described as "a love marriage." Born a
woman, Shumail Raj identified himself as a man.

The case led to a full-blown public panic, coursing
through the media and eventually the courts. Raj had undergone two operations
to alter his physical appearance to match the gender he lived in. Headlines
nonetheless called them a "she-couple," a "same-sex couple," and two "girls" or
"lesbians," and described-and dismissed-their union as the country's first
same-sex marriage.[183]

Shehzina Tariq's father complained to police about the
marriage, and they launched an investigation, invoking Section 377. Hauled
before the High Court in Lahore, the couple told officials that Raj was a man.

A court-appointed panel of forensic doctors had, in the
end, to try to settle the issue of legal identity. As Human Rights Watch has
noted, "It was more important to identify the history behind Shumail Raj's full
beard and masculine build than to recognise his right to privacy, his dignity
and self-respect."[184]

Prosecutors chose ultimately not to try the pair under
377; the uncertainty over Raj's gender joined with the legal ambiguity over
whether the law could be used against what officials now saw as a lesbian
relationship. Clearly, though, the stigma the provision created helped set off
the investigation and sustain hysterical public pressure. On May 28, 2007, a
court sentenced the couple to three years' imprisonment for perjuring
themselves - for saying in court that Shumail Raj was a man. The judge
called the sentence "lenient."[185]

Sri Lanka

Extending criminal penalties in 1995 to include sexual
acts between women led to an increased atmosphere of stigma and menace. The
leader of an LGBT support group has reported having to leave the country for a
time because of death threats.[186]
In 2000, when a lesbian conference was held on the island, a newspaper printed
a letter to the editor urging the participants be raped, "so that those wanton
and misguided wretches may get a taste of the zest and relish of the real
thing."

The Press Council, a state body, rejected a complaint
against the paper, citing the fact that "Homosexualism is an offence in
our law. Lesbianism is at least an act of gross indecency and unnatural." It
stated:

Lesbianism itself is an act of sadism and salacious.
Publication of any opinion against such activities is not tantamount to
promoting sadism or salacity, but any publication which supports such conduct
is an obvious promotion of all such violence, sadism, and salacity. Therefore,
the complainant is the one who is eager to promote sadism and salicity, not the
respondents.

The Council instead slapped a fine on the complainant,
one of the conference's organizers. [187]

Singapore

Singapore police periodically use its laws on homosexual
conduct to raid gay gathering places, including saunas: one raid in 2001 led to
four men being charged initially under Section 377A, though the charge was
later moved under Section 20 of the Miscellaneous Offences (Public Order and
Nuisance) Act. The men received a substantial fine.[188]
Further raids took place in April 2005.[189]
There may be no organized official campaign against such establishments.
Rather, local activists point to the enticing possibilities of blackmail that the
laws offer lower-ranking officers as an incentive to repeated incursions. The
provisions implicitly encourage arbitrary behavior.[190]

The government-conscious of its international image, and
of pressure from international business-has occasionally made gestures toward
non-discrimination, but its commitment to Section 377A strips them of meaning.
In 2003, the prime minister publicly said that civil service jobs were open to
gay people. Christian groups vigorously objected, and launched a protest
campaign targeting Parliament and press.[191] Two years later, a researcher interviewed civil servants about whether
the promise had any effect, and heard "a uniformly resounding 'no.'" He
concluded the prime minister's statement was "nothing more than an embellishing
discourse designed to make Singapore appear more attractive to potential
immigrants."[192]

Police keep tight control on all public or political
events in Singapore. In 2004, they banned a theatre group from holding seminars
on gay literature. [193]
Authorities have also denied permits to gay pride events. Censorship enforces
silence about LGBT people's lives.[194]
In 2004, the state film board banned a Taiwanese romantic comedy for its gay
themes, saying it "creates an illusion of a homosexual utopia, where … no
ills or problems are reflected."[195] In 2008, authorities fined a Singapore television station for a show
that depicted a gay couple and their baby, alleging it "promotes a gay
lifestyle."[196]
They also fined a cable station that aired a commercial with two women kissing,
because "TV advertising guidelines … disallow advertisements that condone
homosexuality."[197]

Perhaps the most serious side effect, though, is that the
state rejects all attempts by LGBT groups to register their organizations
legally. One activist laments, "The laws make for a chicken-and-egg problem.
In order to work towards decriminalization, the gay community has to get
organized, but organizing to defend a 'criminal act' in turn makes gay people
and their supporters cagey."[198]
One Singapore gay leader told Human Rights Watch in 2008: "In the absence of
legality, we are effectively breaking the law whenever we organize anything."[199]

Uganda

For years, Uganda's government has used the
criminalization of homosexual conduct to threaten and harass Ugandans. In 1998,
President Yoweri Museveni told a press conference, "When I was in America, some
time ago, I saw a rally of 300,000 homosexuals. If you have a rally of 20
homosexuals here, I would disperse it." True to his word, when (inaccurate)
press reports the next year recounted a wedding between two men in Uganda,
Museveni told a conference on reproductive health, "I have told the CID
[Criminal Investigations Department] to look for homosexuals, lock them up, and
charge them." Police obediently jailed and tortured several suspected
lesbians and gays; most later fled the country.[200]

Similarly, in October 2004, the country's information
minister, James Nsaba Buturo, ordered police to investigate and "take
appropriate action against" a gay association allegedly organized at Uganda's
Makerere University. On July 6, 2005, the government-owned New Vision
newspaper urged authorities to crack down on homosexuality: "The police should
visit the holes mentioned in the press, spy on the perverts, arrest and
prosecute them. Relevant government departments must outlaw or restrict
websites, magazines, newspapers and television channels promoting immorality –
including homosexuality, lesbianism, pornography, etc." That month, local
government officers raided the home of Victor Mukasa, an activist for LGBT
people's human rights and chairperson of Sexual Minorities Uganda (SMUG). They
seized papers and arrested another lesbian activist, holding her overnight. [201]

LGBT activists held a press conference in Kampala in
August 2007, launching a public campaign they called "Let Us Live in Peace." The
next day, Buturo, now ethics and integrity minister, told the BBC that
homosexuality was "unnatural." He denied police harassment of LGBT people,
but added menacingly, "We know them, we have details of who they are."
Four days later, the press announced that the attorney general had
ordered lesbians and gays arrested. "I call upon the relevant agencies to take
appropriate action because homosexuality is an offense under the laws of
Uganda," he reportedly said. "The penal code in no uncertain terms punishes
homosexuality and other unnatural offenses."[202]

The media intensify the metastasizing fear. In August
2007, the Uganda tabloid paper Red Pepper published a list of first
names, workplaces, and other identifying information of 45 alleged gay men. In
exposing the victims to firing or the threat of violence, the paper claimed it published
the list "to show the nation … how fast the terrible vice known as sodomy is
eating up our society."[203]

Nigeria

Arrests under Nigeria's federal sodomy law happen
steadily, as local headlines suggest: "Paraded by Police for Homosexuality,
Married Man Blames 'Evil Spirit' For His Unholy Act"[204];
or "Caught in the Act: 28-yr-old Homosexual Arrested by OPC While in Action.""[205]

Most of Nigeria's Northern provinces now have their own
penal codes. These combine principles of Islamic law with elements of the
Northern Nigeria Penal Code adopted at the time of independence.[206]

The penal codes of Kano and Zamfara states have simply
taken over the language of the British colonial provisions on "carnal
intercourse against the order of nature," and put it under the shari'a-esque
heading of "sodomy (liwat)." They provide punishments of 100 lashes for
unmarried offenders, and death by stoning for married ones. The Zamfara Penal
Code also criminalizes "lesbianism (sihaq)," punishing it with up to 50
lashes and six months' imprisonment:

Whoever being a woman engages another woman in carnal
intercourse through her sexual organ or by means of stimulation or sexual
excitement of one another has committed the offence of Lesbianism. … The
offence is committed by the unnatural fusion of the female sexual organs and or
by the use of natural or artificial means to stimulate or attain sexual
satisfaction or excitement."[207]

Courts in the north have handed down death sentences for
homosexual conduct under the combined shari'a-and-colonial codes, though
there have been no accounts of executions-yet. The UN special rapporteur on extrajudicial,
summary, or arbitrary executions reports that on a 2005 visit to Nigeria, he
asked to meet with all death-row inmates in Kano prison:

One of them was a 50 year old man awaiting death by
stoning after being convicted of sodomy. A neighbour had reported him to the
local Hisbah Committee [described by the Rapporteur as "groups of mostly young
men who patrol neighbourhoods with the aim of preventing crime and arresting
individuals suspected of committing crimes against the Shari'a"] which
carried out a citizen arrest and handed him to the police. He claimed to have
been comprehensively beaten by both groups. The official court records show
that he admitted to the offence, but sought the court's forgiveness. He had no
legal representation and failed to appeal within the time provided. The Special
Rapporteur subsequently took steps so that a late appeal could be lodged and
the case is now under review.

In December 2005 the Katsina Shari'a
Court acquitted two other men charged with the capital offence of sodomy,
because there were no witnesses. They had nevertheless spent six months in
prison on remand which the judge reportedly said should remind them "to be of
firm character and desist from any form of immorality."[208]

Although draconian provisions were in place at federal
and state levels, Nigeria's government tried to go further. In January 2006,
the president's office proposed new legislation called the "Same Sex Marriage
(Prohibition) Act." That was a misnomer: the bill's reach went far beyond
marriage. It would punish any "publicity, procession and public show of same
sex amorous relationship through the electronic or print media physically,
directly, indirectly or otherwise," and adoption of children by lesbian or gay
couples or individuals. It dictated five years' imprisonment for anyone,
including a cleric, who abetted a same-sex couple in marrying-and for any
person " involved in the registration of gay clubs, societies and
organizations, sustenance, procession or meetings, publicity and public show of
same sex amorous relationship directly or indirectly in public and in
private." In addition to condemning to prison human rights defenders who
address issues of sexuality, the bill could be used to jail even lesbian or gay
couples holding hands.[209]

Despite a push to rush the bill through the National
Assembly in early 2007, it eventually died without a vote. It could, however,
be revived at any time. In international arenas, Nigeria has continued its
campaign, openly calling for killing people who engage in homosexual conduct.
At the UN Human Rights Council in September 2006, Nigeria ridiculed "the notion
that executions for offences such as homosexuality and lesbianism is [sic]
excessive." Its diplomat said: "What may be seen by some as disproportional
penalty in such serious offences and odious conduct, may be seen by others as
appropriate and just punishment."[210]

It is appropriate to end with Nigeria, because the 2006
bill-criminalizing all aspects of lesbian and gay identity and life-culminated
the arc that Macaulay's Indian Penal Code began. Its all-embracing provisions
would render the bill uniquely severe among the world's anti-gay laws. The
trajectory from punishing acts to repressing a whole class of persons was
complete.

The paradox remains that a democratic government promoted
this repressive legislation as part of indigenous values, although it actually
extended old, undemocratic colonial statutes. "Basically it is un-African to
have a relationship with the same sex," the Nigerian minister of justice said
in 2006. A national newspaper intoned, "This progressive legislation is
expected to put a check on homosexuality and lesbianism, a deviant social
behaviour fast gaining acceptance in Western countries."[211]

Sodomy laws encourage all of society to join in
surveillance, in a way congenial to the ambitions of police and state
authorities. That may explain why large numbers of countries that have emerged
from colonialism have assumed and assimilated their sodomy laws as part of the
nationalist rhetoric of the modern state. Authorities have kept on refining and
fortifying the provisions, in parliaments and courts-spurred by the false proposition
they are a bulwark of authentic national identity.

The authoritarian impulse behind legal moves like Nigeria's
also points, though, to the emancipatory potential of decriminalizing
consensual homosexual sex.

The campaigns for law reform are not merely for a right to
intimacy, but for the right to live a life without fear of discrimination,
exposure, arrest, detention, or harassment. Reform would dismantle part of the
legal system's power to divide and discriminate, to criminalize personhood and
identity, to attack rights defenders, and to restrict civil society.

Removing the sodomy laws would
affirm human rights and dignity. It would also repair a historical wrong that
demands to be remembered. The legacy of colonialism should no longer be
confused with cultural authenticity or national freedom. An activist from
Singapore writes: "It's amazing" that millions of people "have so absorbed
Victorian prudishness that even now, when their countries are independent- and
they are all happy and proud they're free from the yoke of the British-they
stoutly defend these laws." He concludes, "The sun may have set on the British
Empire, but the Empire lives on."[212]
These last holdouts of the Empire have outlived their time.

Recommendations

To all governments, including those that inherited British
colonial laws criminalizing homosexual conduct

·Repeal all laws that criminalize
consensual sexual activity among adult people of the same sex.

·Ensure that criminal and other legal
provisions of general application are not used to punish consensual sexual
activity among adults of the same sex.

·Pass laws defining the crime
of rape in a gender-neutral way so that the rape of men by men, or of women by
women, is included in the definition and subject to equal punishment.

·Consistent with the principle
of non-discrimination, ensure that an equal
age of consent applies to both same-sex and different-sex sexual activity.

·Repeal any law that prohibits or
criminalizes the expression of gender identity, including through dress, speech
or mannerisms, or that denies individuals the opportunity to change their
bodies as a means of expressing their gender identity.

To the Commonwealth Secretariat

·Consistent with the 1971 Singapore
Declaration of Commonwealth Principles, which affirms "the liberty of the
individual," "equal rights for all citizens," and "guarantees for personal
freedom," condemn and call for the removal of all remaining British colonial
laws that criminalize consensual sexual activity among adult people of the same
sex.

·As part of Commonwealth programs to
help member nations implement international obligations in their laws, promote
the decriminalization of consensual, adult homosexual conduct.

·Also as part of these programs, develop
models for gender-neutral legislation on rape and sexual abuse, and for the
protection of children.

·Integrate issues of sexual orientation
and gender identity into all human rights educational and training activities,
including the Commonwealth Human Rights Training Programme for police.

To the United Nations and its human rights mechanisms

·Consistent with the decision
of the UN Human Rights Committee in the 1994 decision of Toonen v.
Australia, condemn and call for the
removal of all remaining laws that criminalize consensual sexual activity among
adult people of the same sex, as violations of basic human rights to privacy
and equality.

Acknowledgements

This
report was researched and written by Alok Gupta, consultant to Human Rights
Watch. Substantial contributions to the research and writing were made by Scott
Long, director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at
Human Rights Watch. At Human Rights Watch, it was reviewed by Maria Burnett
and Corinne Dufka, researchers in the Africa division, and Meenakshy Ganguly,
researcher in the Asia division. It was edited by Dinah PoKempner, general
counsel, and Joe Saunders, deputy program director. Jessica Ognian provided
production assistance. Grace
Choi and Fitzroy Hepkins prepared the report for production.

Human Rights Watch thanks Reid Williams for his generous
support of this work.

[1]
As explained below, most law derived from British colonialism makes no
distinction between homosexual acts committed with or without consent, or
between homosexual acts committed by adults as opposed to adults' abuse of
children. Therefore, the petition aims to "read down" rather than strike down
the law. It asks the Court to state that consensual homosexual acts between
adults are no longer criminal under the provision, while leaving intact Section
377's application to non-consensual acts and to children-until India passes a
modern, gender-neutral rape law, and provides express legal protection for male
children against sexual abuse.

[3]
High Court of Delhi, Naz Foundation v. Govt. Of N.C.T. of Delhi and Others (SLP
No. 7217-7218 of 2005), Rejoinder to Government of India,
http://www.lawyerscollective.org/files/Rejoinder%20to%20Government%20of%20India[9].pdf,
(accessed August 15, 2008). See also Sumit Baudh, "Human Rights and the
Criminalisation of Consensual Same-Sex Sexual Acts in the Commonwealth, South
and Southeast Asia," a working paper of the South and Southeast Asia Resource
Center on Sexuality, May 2008.

[14]
An exact number is hard to calculate. Almost none of these laws mention
"homosexuality" (a term only coined in 1869) or homosexual acts; the
terminology differs between legal systems and (as the discussion of the
original meanings of "sodomy" in Chapter II below shows) is sometimes difficult
to interpret. For instance, Egypt is often excused from lists because its law
punishes the "habitual practice of debauchery [fujur]," even though
domestic jurisprudence since the 1970s has established that this term refers to
consensual sex between men. The best reference work on the subject is Daniel
Ottosson, State-Sponsored Homophobia: A World Survey of Laws Prohibiting
Same-Sex Activity Between Consenting Adults, an International Gay and
Lesbian Association (ILGA) report, http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf
(accessed August 1, 2008).

[15]
The principle that criminalizing consensual same-sex sexual conduct violates
basic human rights was laid down by the UN Human Rights Committee-which
interprets and monitors compliance with the International Covenant on Civil and
Political Rights (ICCPR)-in the 1994 case of Toonen v. Australia. The
Committee found that sexual orientation is a status protected against
discrimination under articles 2 and 26 of the ICCPR.

[16]
The Ghanaian code differs from other British-derived Penal Codes in Africa in
that consensual "buggery," while a crime, is defined only as a misdemeanor.
Ghanaian law does not derive directly from the Indian Penal Code (or the
Queensland Penal Code)-as do most other British-African codes, as explained
below. Its ancestor was a draft prepared for Jamaica by the liberal British
jurist R.S. Wright, who was heavily influenced by the libertarian ideals of the
philosopher John Stuart Mill. (Mill famously wrote that "the only purpose for
which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others": Mill, On Liberty
(Harmondsworth: Penguin, 1974), p. 68). Wright's draft code was never
applied in Jamaica but became the basis for Ghanaian law. See M. L. Friedland,
"R. S. Wright's Model Criminal Code: A Forgotten Chapter in the
History of the Criminal Law," Oxford Journal of Legal Studies, Vol. 1,
No. 3 (Winter 1981), pp. 307-346.

[17]South Africa, although taken over by the British in 1806, retained the
Netherlands' common law, known as "Roman-Dutch"-which also criminalized
"sodomy." This common-law offense was finally struck down by the
Constitutional Court of the post-apartheid country in 1998. (The Netherlands
itself decriminalized sodomy in 1809, when Napoleon annexed it. In one of the
typical paradoxes of colonial law, this was three years too late to affect the
Netherlands' onetime African colony, which kept Roman-Dutch law in its
pre-1806 form and hence retained the crime.) Roman-Dutch law came to what is
now Namibia when, as the territory of South-West Africa, it became a
South African mandate in the wake of World War I. It remains Namibia's common
law, and sodomy is still a crime there. The same is true of Zimbabwe,
which began its colonial existence as a possession of Cecil Rhodes' Cape
Town-based British South Africa Company. However, Roman-Dutch law in colonial
Rhodesia as well as modern Zimbabwe has been interpreted by judges trained in
British common law, and the understanding of sexual offences there has been
heavily affected by the Sec 377 tradition. For a fuller discussion, see Scott
Long, "Before the Law: Criminalizing Sexual Conduct in Colonial and Post-Colonial
Southern African Societies," in More than a Name: State-Sponsored Homophobia
and its Consequences in Southern Africa, a Human Rights Watch/International
Gay and Lesbian Human Rights Commission report, 2003, pp. 256-299.

[18]
Napoleon´s armies then brought decriminalization to the conquered Netherlands,
and thus to most of its colonies.

[25]Kailash v. State of Haryana, 2004 Criminal Law Journal, p. 310 at para
8. In fact, historians contend that in India before British rule, there was no
aggressive policing of homosexual conduct. See Saleem Kidwai and Ruth Vanita,
eds., Same-Sex Love in India: Readings from Literature and History (New
York: St. Martin's Press, 2000).

[26]
See Carole J. Petersen, "Values in Transition: The Development of the Gay and
Lesbian Rights Movement in Hong Kong," Loyola of Los Angeles International
and Comparative Law Journal, Vol. 19 (1997), pp. 337-62.

[27]
Submission from General Association of Kowloon District Association, quoted inThe Law Reform Commission of Hong Kong, Report, Laws governing
homosexual conduct, June 28,1982, http://www.hkreform.gov.hk/en/docs/rhomosexual-e.doc
(accessed August 8, 2008). (The Law Reform Commission, however, supported the
Wolfenden principles).

[28]
It however retained a discriminatory age of consent-14 for heterosexual sex, 21
for sex between men--and a draconian punishment of imprisonment up to life for
gay men who broke it, as against five years for heterosexuals. This was only
overturned in court in 2006.

[37]
Quoted in Craig Timberg, "Nigerian Churches Tell West to Practice what It
Preached on Gays," Washington Post, October 24, 2005.

[38]
See Leslie J. Moran, "The Homosexualization of English Law," in Didi Herman and
Carl Stychin, eds., Legal Inversions: Lesbians, Gay Men, and the Politics of
Law (Philadelphia: Temple University, 1995).

[39]Fleta, seu Commentarius Juris Anglicani, was a Latin survey of English
law produced in Edward I's court in 1290 (allegedly written while the
out-of-favor author served time in Fleet prison, accounting for its name): Fleta,
ed. and trans. H. G. Richardson and G. O. Sayles (London: Quaritch, 1955). Britton
was composed somewhat later, and in Norman French. See Heinrich Brunner, The
Sources of the Law of England, trans. William Hastie (Edinburgh: T.T.
Clark, 1888), and Hampton L. Carson, "A Plea for the Study of Britton," Yale
Law Journal, Vol. 23, No. 8 (1914), pp. 664-671.

[41]
Long 2003, p. 260; see also David F. Greenberg, The Construction of
Homosexuality (Chicago: University of Chicago, 1988), pp. 274-92.

[42]
Christian precepts on sexual practice and sexual imagination were refined in
patristic literature between the 1st and 8th centuries
A.D. The emphasis was on minimizing pleasure and maximizing procreative
possibility in sexual activity. All acts of intercourse, including heterosexual
vaginal intercourse outside the "missionary" position, were graded as
"unnatural" to the degree that pleasure superseded the purely procreative
functions of the sexual act. See James A. Brundage, Sex, Law and Marriage
in the Middle Ages: Collected Studies (Aldershot: Variorum, 1993).

[43]
R. I. Moore, The Formation of a Persecuting Society (London: Blackwell,
1987); see also Mary Douglas, Purity and Danger: An Analysis of the Concepts
of Pollution and Taboo (London: Routledge, 2002).

[44]
The word "buggery" derived by way of the French "bougre" from the
medieval Bogomil heresy, which flourished in Bulgaria. Again, sexual and
religious (and racial) "deviance" were intimately associated. See Bailey, pp.
147-49, and H. Montgomery Hyde, The Love That Dared Not Speak Its Name: A
Candid History of Homosexuality in Britain (Boston: Little Brown, 1970).
The law was repealed twenty years later with the return of Catholicism under
Queen Mary, as sexual offences moved back to the jurisdiction of ecclesiastical
courts; it was re-enacted under the Protestant Queen Elizabeth I in 1563. See
also Kenneth Borris, Same-Sex Desire in the English Renaissance: A
Sourcebook of Texts, 1470-1650 (London: Routledge, 2004).

[46]
Edward Coke, The Third Part of the Institutes of the Laws of England, Cap.
X, "Of Buggery, or Sodomy" (Printed for E. and R. Brooke, 1797), p. 58.

[47]
The judges agreed that the invective in the indictment was unspecific. They
concluded, however, that simply adding the term "buggery" would have the
effect of "shewing the intention implied by the epithets." R v. Rowed, cited
in Moran 1996, pp. 38 ff.

[49]
J. F. Stephen, A History of the Criminal Law of England (London:
Macmillan, 1883), vol. III, p. 304.

[50]
Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial
India (London: Oxford University, 1998). See also Elizabeth Kolsky,
"Codification and the Rule of Colonial Difference: Criminal Procedure in
British India," Law and History Review, Vol. 23, No. 3 (2005), http://www.historycooperative.org/journals/lhr/23.3/kolsky.html
(accessed August 8, 2008).

[51]
Quoted in Robert Aldrich, Colonialism and Homosexuality (London:
Routledge, 2003), p. 31. Or, as Lord Byron theorized about a similar but
heterosexual "vice": "What men call gallantry, and Gods adultery / Is much more
common where the climate's sultry." Don Juan, Canto I, stanza 63.

[58]
Sec 377A was introduced into the Singapore Penal Code by Sec 7 of the Penal
Code (Amendment) Ordinance 1938 (No 12 of 1938). The reason, as stated in the
Proceedings of the Legislative Council of the Straits Settlements in 1938 was
to "[make] punishable acts of gross indecency between male persons which do not
amount to an unnatural offence within the meaning of s 377 of the Code": p.
C81, April 25, 1938. See microfiche no 672, Straits Settlements Legislative Council,
Proceedings (SE 102), Vol. 1938 (Central Library Reprographic Dept, National
University of Singapore).

[59]
H. F .Morris, "A History of the Adoption of Codes of Criminal Law and Procedure
in British Colonial Africa, 1876-1935," Journal of African Law, Vol. 18,
No. 1 (Spring, 1974), pp. 6-23.

[64]
Ibid., p.444, Sec 319: "Whoever commits an act of gross indecency upon the
person of another without his consent or by the use of force or threats compels
a person to join with him in the commission of such act, shall be punished with
imprisonment for a term which may extend to seven years and shall also be
liable to fine; provided that a consent given by a person below the age of
sixteen years to such an act when done by his teacher, guardian or any person
entrusted with his care or education shall not be deemed to be a consent within
the meaning of this section."

[65]
The Sudanese Penal Code of 1991, Sec 148, "Sodomy: (1) Any man who inserts his
penis or its equivalent into a woman's or a man's anus or permitted another man
to insert his penis or its equivalent in his anus is said to have committed Sodomy;
(2) (a) Whoever commits Sodomy shall be punished with flogging one hundred
lashes and he shall also be liable to five years imprisonment; (b) If the
offender is convicted for the second time he shall be punished with flogging
one hundred lashes and imprisonment for a term which may not exceed five years.
(c) If the offender is convicted for the third time he shall be punished with
death or life imprisonment." As chapter V discusses below, in a number of
countries-Pakistan and Nigeria among them-the modern resurgence of supposedly shari'a-influenced
or -derived laws has not so much revived "indigenous" legal values as further
entrenched colonial ones. This toxic mix is an important topic in its own
right, but beyond the scope of this report.

[66]
Friedland, p. 1177. It was based on an earlier proposal from 1878.

[67]
Unnatural offenses themselves continued to be defined by penetration, as in Sec
6: "Carnal Knowledge: When the term 'carnal knowledge' or the term 'carnal
connection' is used in defining an offence, it is implied that the offence,so
far as regards that element of it, is complete upon penetration." However, Sec
2-9 of the QPC reads that "Any person who attempts to commit any of the crimes
defined in the last preceding section is guilty of a crime, and is liable to
imprisonment with hard labor for seven years."

[68]
Broader issues than "unnatural offences" divided supporters of the two codes.
The QPC was heavily inflected by European civil law, particularly the Italian
Penal Code, and omitted the common-law requirement of mens rea, or criminal
intent.

[72]
Later, in 1960, during the waning days of colonial rule, the territory of
Northern Nigeria chose to have a separate Penal Code, independent of the new
country's Federal Criminal Code. It took as a basis the Sudanese Penal Code of
1899, ironically based on the IPC, which Northern Nigeria had earlier rejected(Morris 1970, p. 153). However, the fact that the Sudanese code
had decriminalized consensual sodomy did not go unnoticed-or unchanged. The
Northern Nigeria Penal Code reverted back to the old consent-neutral definition
from the Indian Penal Code. To multiply confusion, though, the drafters
neglected to make the same change to the "gross indecency" provision, which
remained applicable only to non-consensual activities (Gledhill, p. 444).

[76]
Robert Jutte, Poverty and Deviance in Early Modern Europe (Cambridge:
Cambridge University, 1994); Robert Forster and Orest Ranum, eds., Deviants
and the Abandoned in French Society: Selections from the Annales,
Economies, Societes, Civilisations, Vol. 4, trans. Elborg Forster and
Patricia M. Ranum (Baltimore: Johns Hopkins, 1978); Thomas McStay Adams, Bureaucrats
and Beggars: French Social Policy in the Age of the Enlightenment (Oxford:
Oxford University, 1990).

[88]
Cited in Human Rights Violations against the Transgender Community: A Study
of Kothi and Hijra Sex Workers in Bangalore, India, a report by People's
Union for Civil Liberties, Karnataka (PUCL-K), September 2003, pp. 44-45, and
Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South
India (Chicago: University of Chicago, 2005). "Eunuch" in European culture
and law meant a castrated male; some though hardly all Indian hijras had
removed their male genitals in whole or in part. The general category of
"impotence" in these laws, however, seemed meant to embrace any biological men
who abjured "active" male sexual functioning.

[101]
E-mail communication to Scott Long, Human Rights Watch, from Dr. Lorna Martin,
July 23, 2003. Dr. Robert Nye, a historian of sexology, told Human Rights Watch
that "The famous six 'signs' of passive sodomy were questioned and disregarded
by the very next generation of forensic doctors and sexologists." He called
Tardieu "utterly discredited," and the examinations "horrific in the extreme."
E-mail communication to Scott Long, Human Rights Watch, from Professor Robert
Nye, Department of History, Oregon State University, July 18, 2003. Both are
quoted in In A Time of Torture: The Assault on Justice in Egypt's Crackdown
on Homosexual Conduct, a Human Rights Watch report, 2004. For a survey of
the medical and legal implications of the exams, see Scott Long, "When
Doctors Torture: The Anus and the State in Egypt and Beyond," Health
and Human Rights: An International Journal,Vol. 7, No. 2 (2004), pp.
114-40.

[107]
The permanent legal minority that British colonial law imposed on hijras or
"eunuchs," denied even the capacity to make a will, is perhaps a parallel.

[108]
The Offence of Zina (Enforcement Of Hudood) Ordinance, 1979, Sec 12:
"Kidnapping or abducting in order to subject person to unnatural lust: Whoever
kidnaps or abducts any person in order that such person may be subjected, or
may, be so disposed of as to be put in danger of being subjected, to the
unnatural lust of any person, or knowing it to be likely that such person will be
so subjected or disposed of, shall be punished with death or rigorous
imprisonment for a term which may extend to twenty-five years."

[109]Muhammad Din v. The State, 1981 All Pakistan Law Decisions, Federal
Supreme Court, p. 191. The case was then tried under Pakistan's version of Sec
377.

[117]
At the same time the colonial court in Khanu defined "unnatural" sex as
non-procreative sex, contraception was legal in Britain. Marie Stopes opened
Britain's first family planning clinic in 1921, four years before Khanu.
Birth control had never been criminalized in the home country, though
distributing information on contraception risked obscenity charges through the
19th century: see Kristen Brandser, "Law, Literature, and Libel:
Victorian Censorship of 'Dirty Filthy' Books on Birth Control," paper presented
at the meeting of the Law and Society Association, Chicago, Illinois, May 27,
2004.

[119]
Ibid. The Khanu court still found oral sex "less pernicious than the sin
of Sodom." Its peculiar reasons were that "It cannot be practiced on persons
who are unwilling. It is not common and can never be so"-and, most notably, "it
cannot produce the physical changes which the other vice produces."

[120]Muhammad Ali v. The State, 1961 All Pakistan Law Decisions, High Court
of Dacca, p. 447.

[135]
First press accounts suggested that she was 16, above the legal age of consent
for (vaginal) sex, and had consented. Later reports, however, suggested she was
15. "Singapore Reviews Oral Sex Law," BBC
News, January 6, 2004;

[139]
Lee Kuan Yew, the powerful former prime minister, made the shift from
nature-based to culture-based arguments explicit, telling supporters: "You
take this business of homosexuality. It raises tempers all over the world, and
even in America. If in fact it is true -- and I have asked doctors this -- that
you are genetically born a homosexual because that's the nature of the genetic random
transmission of genes, you can't help it. So why should we criminalise it? But,"
he went on, "there's such a strong inhibition in all societies …" Straits
Times, April 23, 2007, quoted in "The Oracle from St. James," www.yawningbread.org/arch_2007/yax-734.htm
(accessed November 15, 2008).

[141]
"377A serves public morality : NMP Thio Li-Ann," The Online Citizen, October
23, 2007, http://theonlinecitizen.com/2007/10/377a-serves-public-morality-nmp-thio-li-ann/
(accessed August 15, 2008). She also warned ominously, "To
those who say that 377A penalizes only gays not lesbians, note there have been
calls to criminalize lesbianism too."

[148]Sydney Joseph Bourne, 1952 Criminal Appeals Report, Vol. 36, p. 125
(United Kingdom). The law of Papua New Guinea derived from the
Queensland Penal Code, which expressly punished anyone who "permits a male
person to have carnal knowledge of him … against the order of nature."

[154]
The very definition of "consent" is a point of deep political division in
India. Secs 375 and 376 of the IPC, which deal with rape, have accumulated jurisprudence
around what "consent" means which, even after independence, reflects Victorian
presumptions about women's purity. In a famous 1970s case in Maharashtra, two
policemen raped a 16-year-old tribal girl in their station. A local court
acquitted the policeman, holding that since the girl had already eloped with
her boyfriend, she was "habituated" to intercourse, had implicitly
consented-and could not be raped. A high court decision overturned this ruling,
and tried to elaborate a distinction between consent on the one hand, or
passive submission or helpless surrender due to threat on the other. The
Supreme Court overruled the high court and set aside the conviction, holding in
effect (similarly to the Papua New Guinea ruling, above) that passive submission
was the equivalent of consent.

The case triggered a women's rights campaign to reduce
the high standard requiring a rape victim to prove "beyond reasonable doubt"
that she had not consented. Advocates demanded that a woman's retrospective claim
that she had not consented be given evidentiary force. Partial criminal law
reforms in 1983 accepted this standard but only for rape in custodial settings
such as jails. During the debate in the Lok Sabha (Parliament), MPs revealed
some of the society's underlying attitudes about women's sexuality and how to
"protect" and control it. At one extreme-suggesting some women merited no
protection-one speaker said, "We're not dealing all the time with virtuous
women. We may also deal with some women who unfortunately do not conform to
normal standards of womanhood." At another extreme-of repression masquerading
as protection-another MP suggested classing any sexual relationship between an
unmarried woman and a man as rape, which he claimed would be consistent with
"our own sexual morality." Quoted in Nivedita Menon, "Embodying the Self:
Feminism, Sexual Violence, and the Law," in Partha Chatterjee and Pradeep
Jeganathan, eds., Community, Gender, and Violence: Subaltern Studies XI
(New York: Columbia University, 2000). See also Flavia Agnes, Journey to
Justice (Bombay: Majlis, 1990).

Women's rights advocates maintain the Indian judiciary
is still rife with the belief that some women-"lewd" or of "questionable
character"-deserve no protection against sexual violence. See Oishik Sircar,
"Women Make Demands, but Only Ladies Get Protection," at
http://infochangeindia.org/index2.php?option=com_content&do_pdf=1&id=5621,
(accessed August 21, 2008). The conflicting standards are
conspicuous: no man can consent to "sodomy," but some women cannot deny consent
to any sexual act.

[161]
Sec 3 of the Sexual Offences Special Provisions Act (Act no. 4 of 1998), passed
by the Parliament of the United Republic of Tanzania, amended several
provisions relating to sexual offences of the Tanzanian Penal Code, including
the definition of gross indecency.

[163]
A 1957 Ugandan case showed how stereotype and presumption-about relations
between the races, as well as sex itself-could also serve as conclusive
evidence in cases of "sodomy." A British officer had given a "native" herdsman
one shilling and some sugar as gifts. The unusualness of this "special favor" across
the power divide created a presumption of sodomy, leading to the officer's
arrest. Hoyle v. Regiman, Criminal Appeal No. 242, 1957 Uganda Law Report,
pp. 314-321.

[164]
Lillian Tibatemwa-Ekirikubinza, Criminal Law in Uganda: Sexual Assaults And
Offences Against Morality (Kampala: Fountain Series in Law and Business
Studies, 2005), p. 97.

[166]
The Joint Action Group on Violence against Women (JAG-VAW) led the movement.
Their initial proposal called for an additional Sec 375A of the Penal Code, to
redefine sexual intercourse as: "a. sexual connection occasioned by the
penetration of the vagina of any person or anus of any person by , 1.any part
of the body of another person; or 2. an object manipulated by another person
except where the penetration is carried out for proper medical purposes; b.
sexual connection occasioned by the introduction of any part of the penis of a
person into the mouth of another person; c. cunnilingus." Beng Hui, "One
Step Forward, Two Steps Back? Conundrums of the Rape Legal Reform Campaign in
Malaysia," Gender, Technology and Development, Vol. 11, No. 1 (2006).

[168]
The punishment-five to 20 years' imprisonment-remained almost the same as for
consensual homosexual acts, but was equivalent to the punishment for a man's
rape of a woman: "377A.Carnal intercourse against the order of nature. Any
person who has sexual connection with another person by the introduction of the
penis into the anus or mouth of the other person is said to commit carnal
intercourse against the order of nature. Explanation: Penetration is sufficient
to constitute the sexual connection necessary to the offence described in this section.
377B. Punishment for committing carnal intercourse against the order of nature.
Whoever voluntarily commits carnal intercourse against the order of nature
shall be punished with imprisonment for a term which may extend to twenty
years, and shall also be liable to whipping. 377C. Committing carnal
intercourse against the order of nature without consent, etc. Whoever voluntarily
commits carnal intercourse against the order of nature on another person
without the consent, or against the will, of the other person, or by putting
other person in fear of death or hurt to the person or any other person, shall
be punished with imprisonment for a term of not less than five years and not
more than twenty years, and shall also be liable to whipping."

[169]
The provisions on "carnal intercourse" continued to make no distinction between
adults and children. The only specific protection for children was in the new
377E, "Inciting a child to an act of gross indecency: Any person
who incites a child under the age of fourteen years to any act of gross
indecency with him or another person shall be punished with imprisonment for a
term which may extend to five years, and shall also be liable to whipping."
However, the punishment for sexual relations with a girl under 16 (under
"Rape," Sec 375) is substantially higher, including imprisonment from five to
20 years. Penetrative rape of male children remained without specific mention
in the code.

[170]
"Sec 377D: Outrages on decency: Any person who, in public or private, commits,
or abets the commission of, or procures or attempts to procure the commission
by any person of, any act of gross indecency with another person, shall be
punished with imprisonment for a term which may extend to two years."

[171]
Courts have been slow to adopt this interpretation, however. As late as 1998 a
court still held thatthe purpose of Sec 377D was to punish "gross
indecency" between men alone. Sukma Darmawan Sasmitaat Madja v. Ketua
Pengarah Penjara Malaysia & Anor, 1998 Malayan Law Journal, Vol. 4, p. 742.
Meanwhile, the introduction of Islamic (Syariah) law in Malaysia has also
created new or parallel sexual offences. Some states have passed Syariah
Enforcement enactments, punishing not only Liwat-sodomy-but also Musahaqah,
defined as "sexual relations between female persons" and punished with
three years' imprisonment, fines, or whipping: see, e.g., Syariah Criminal
Offences (Federal Territories) Act 1997, Sec 26.

[172]
One activist argues that "the criminalization of lesbianism" in Sri Lanka
derives not just from a "lack of clarity" about how to classify sexual
behaviour before the law, but also from the stigma created by the "confusion
between male homosexuality and pedophilia": Yasmin Tambiah, "Realising Women's
Sexual Rights: Challenges in South Asia," Nordic Journal of International
Law, No. 67 (1998), pp. 97-105.

[178]
Human Rights Watch, "Letter to Indian Prime Minister Singh on the Arrest of
Four Men on Charges of Homosexual Conduct in Lucknow," January 10, 2006.

[179]Human Rights Violations Against Sexuality Minorities in India: A PUCL-K
Fact-Finding Report About Bangalore, a report by Peoples' Union for Civil
Liberties-Karnataka (PUCL-K), February 2001, www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf; and Human
Rights Violations Against the Transgender Community: A Study of Kothi and Hijra
Sex Workers in Bangalore, India, PUCL-K, September 2003.

[180]
Recorded in the "Intervention Application" filed by Voices Against 377 (a
coalition of civil society groups) in the ongoing challenge against Sec 377's
application to consensual homosexual acts, in the Delhi High Court, Civil Writ
Petition No. 7455/2001.

[194]
The government's power to censor is enormous, but scattered among several
agencies, meaning that standards are erratic and unpredictable-and leave
writers or artists perpetually unsure where the line will be drawn. See Alex
Au, "Making Sense of Censorship in Singapore," Fridae.com, January 30,
2007, http://www.fridae.com/newsfeatures/article.php?articleid=1846&viewarticle=1
(accessed August 28, 2008).

[206]
The entire concept of codification is alien to the spirit and history of shari'a
law, which traditionally is embodied in the scattered rulings of jurists in
the four Sunni schools. That shari'a advocates in northern Nigeria have
turned to imposing full-fledged codes further reveals how the colonial legacy
persists.

[207]
Article 135 of the Zamfara Penal Code,
http://www.zamfaraonline.com/sharia/chapter08.html (accessed August 25, 2008).
See also Political
Shari'a? Human Rights and Islamic Law in Northern Nigeria, a
Human Rights Watch report, 2004.

[208]
"Extrajudicial, Summary, or Arbitrary Executions, Report of the Special
Rapporteur, Mr. Philip Alston, Mission to Nigeria," January 7, 2006,
E/CN.4/2006/53/Add.4, at 21-24.

[210]
"Recognizing Human Rights Violations Based on Sexual Orientation and Gender
Identity at the Human Rights Council Session 2," ARC International (2006); also
available on Human Rights Council Website, www.unhchr.ch.

[211]
Minister of Justice Bayo Ojo, and the newspaper Nigeria First, both quoted
in "Nigeria: Government proposes law to ban same-sex marriage," IRIN Africa,
January 20, 2006, http://www.irinnews.org/report.aspx?reportid=57879 (accessed
August 26, 2008).